The use of liberal legality has several limitations for indigenous self-determination; however, this does not necessarily mean that indigenous peoples engage with the approaches that criticise human rights from a perspective of radical politics. On the contrary, radical politics many times obscure the fact that indigenous peoples use liberal legality to express their indigeneity without losing their foundational principles. This complex process of ‘appropriation’ and at the same time ‘going beyond’ liberal legality represents a project directed to decolonise human rights.
The radical critiques on rights are geared to question the foundation of the international system of human rights: ‘the right to have rights’ first proposed by Hannah Arendt as the abstract right of a human as such that justifies its incursion within the national or international political community. This incursion is assured by the international system, which is a reason why these original rights become ‘humanitarian rights’ or the rights of those who cannot politically enact their rights (Rancière, 2004). For Arendt, then, the political entails the interactions between human beings that are recognised as equals within a public sphere, omitting that those who are not considered as equals can also exert their politics (Schaap, 2011).
This proposition has been criticised through the following: if one identifies the original subject of rights as those that have nothing but its abstractness as human beings, a space is created in which powerful Western regimes can enact those rights through political and military interventions (Rancière, 2004; Žižek, 2005). Miéville (2005) rightly asserts that this emptiness might be occupied also by progressive discourses, however, by persisting in abstracting human rights it can be re-appropriated by hegemonic powers. The substance of human rights is then an abstract rationality, a principle that not only obscures actual inequalities but also justifies the liberal principles that allow those inequalities to persist (Peterson, 1990). For these reasons, Schaap (2011) argues that Arendt’s proposition on human rights not only entails its depolitisation but could also justify the politics of unilateral humanitarian interventions.
Similar to Arendt, Agamben identifies a subject with no possibility to enact their rights, although this would be precisely perpetuated by liberal legality. In Agamben’s view (2008) there is no space for the bare human within the liberal political order: the
71 refugee, the stateless, etc. are exceptional and temporary conditions that must be either included into or excluded from the political system. Some authors have reflected on indigenous perspectives in Agambenian terms and argue that the whole colonial project was imposed as an exception which permitted the elimination of indigenous peoples (Morgensen, 2011; Rifkin, 2009). Indeed, indigenous people have been the paradigmatic non-human, non-citizen, homines sacri considering they have been openly exterminated or displaced to zones of exceptions such as reserves, missionary camps, and other legal forms under the protection of the sovereign (Havemann, 2005).
Agamben (2005) asserts that everyone incorporated into Western law may be assigned to the state of exception. It is important to add that today we are exposed to a state of exceptions not because we are equals before Law, but because in one way or another we all are trapped within the colonial hierarchies embedded in the discourse and structures of the nation-state (Morgensen, 2011). Thus, in spite of the rhetoric, indigenous peoples still live in a constant state of exception. For example, the native title does not avoid the possibility of unilateral extinguishment of indigenous territorial rights; consultation does not ensure the respect of indigenous territories; all Latin American constitutions, even the most progressive, establish as an ‘exception’ that the state can exploit natural resources located in indigenous areas.
Hardt and Negri (2009) criticise the fact that Agamben does not discuss the possibility of biopolitical resistance. Thus, Hardt and Negri criticise Agamben in the same way Rancière does of Arendt for the lack of politics of those excluded. In the specific case of indigenous peoples, this lack of politics refers to the fact of neglecting territorial claims. The biopolitical project of the nation state that might include or exclude indigenous peoples is supported by a national-territorial geopolitical project, which could displace any political formation as bare habitance (Rifkin, 2009). According to Rifkin (2009) by conceiving bio-politics without geopolitics and bare life without bare habitance, Agamben’s analysis results in an omission of the politics of territoriality. And this issue is the very essence of indigenous politics.
A similar limitation is observed in the radical political account of Costas Douzinas (2010), who asserts that a truly re-politisation of rights must be found not in the struggle of the bare lives to enact their equality (as Rancière) but in the right of resistance/revolution. Costas undertakes a historical analysis of this right in the Western tradition and found that in the French revolution, resistance and revolution were not only a radical socio-political shift, but a modernity device and normative principle, in other words: the right to resist and overcome oppression was understood as the most important freedom. The Declaration of the rights of man and citizens, however, rejected this right because the constituent power adopted Kant’s ethics against instability. The subsequent human rights discourses not only omitted this right but also proscribed it. The Universal Declaration of Human Rights (1948), for example, establishes in its article 30 the prohibition to undertake radical transformations to the legal and political system: “the reversal of priorities between the right to revolution and substantive rights was complete” (Douzinas, 2010: p. 93). As a result, formal human rights were transformed into a liberal padlock of a hegemonic system in which any political claim is isolated and converted into a technical and specific disagreement that must be institutionalised. In this way, human rights respond to the logic of the de-politisation of politics.
72 Douzinas (2010) proposes to re-politicise politics by going beyond Rancière arguments. As rights became an important device of hegemonic politics, instead of trying to achieve equality with these rights, he suggests that the communists’ axioms are the only ones that can properly re-politicise rights. These axioms are directed to justify the right to resistance/revolution in order to overcome the current social order. This proposition is directed to legally support what Derrida (1992) calls the ‘mystical foundation of authority’ or the founding violence. By suspending the legality, this violence justifies itself with the argument that creating a new order would replace the oppressed one. This revolution is blamed for being brutal and illegal but it is legitimated retrospectively by expressing the immanent right to resist and overcome injustices (Douzinas, 2010). This entails a ‘right to Law’ that represents the foundation of the state and the immanent right to resistance.