‘Emancipation’ or ‘regulation’? Law, globalization and indigenous peoples’ rights in post-war Guatemala

Abstract

During the last two decades processes of legal globalization have led to the increasing codification of the collective rights of indigenous peoples. In Latin America this shift towards ‘codifying culture’ began with a series of constitutional reforms during the 1990s which recognized a series of rights of indigenous people and the ratification by many states of the International Labour Organization's Convention 169 on the rights of indigenous and tribal peoples. For many, this regional ‘neoliberal multicultural’ turn (Hale, 2002, 2006) was not about recognizing rights as such, but rather heralded a series of governmental policies signalling limited acceptance of cultural diversity which ultimately facilitated transnational forms of capitalist accumulation. The limited gains of state-endorsed multiculturalism and the threats posed to indigenous livelihoods by the current commodities boom have encouraged a growing number of counter-hegemonic legal engagements, or legal globalization ‘from below’, which resort to ever more transnationalized legal pluralities (Santos & Rodríguez-Garavito, 2005). Indigenous people across Latin America continue to judicialize their protests, appealing to legal entitlements, including both ‘hard law’ (treaty and constitutional law) and ‘soft law’ (such as the internal norms of multilateral development institutions), in order to claim greater autonomy and protest against the effects of dominant patterns of economic development. Using Boaventura de Sousa Santos's heuristic device of the regulatory and emancipatory dimensions of law (Santos, 1998, 2002), in this article I examine the effects of legal globalization and the appropriation of legal instruments and discourses by indigenous people in post-war Guatemala. Specifically, I highlight the distinct legal frameworks, and conflicting notions of property, development, citizenship and democratic participation and voice at play in recent mobilizations against mining projects. The conclusions reflect on the possible effects of judicializing indigenous peoples’ political demands.