In spite of the limitations of today’s multicultural liberal legality, the legal framework of human rights are seen by many scholars and activists as unavoidable instruments to achieve social justice. Taking into account that the conflicts between indigenous territorial rights and extractive industries are mediated by liberal devices, it is important to analyse the potentials and shortcomings of the practice and theory of liberal legality for indigenous peoples.
Modern legal theory is rooted in the Natural Law tradition of Vitoria and its justification of just wars against the Indians (on behalf of God during the hegemonic rule of the Roman-Catholic Church; and on behalf of reason and civilisation with the emergence of the European nation state system). After the liberal reforms and revolutions the ‘will theory’ emerged as a principle and methodological explanation of the logic of Private Law (based on the protection of property and freedom of contract) and Public Law (based on a social contract that supported the liberal state) (Villey, 1996). On this basis, the German historical school of the 19th century constructed a formal theory of Law which says that any legal system is an internally coherent structure that reflects the normative order of an underlying society. Thus, legal theory became a positivistic and formal theory and an apolitical project (Kennedy, 2004).
In this way Law and liberal legality came to be synonyms: a neutral and abstract structure of norms and legal principles completely detached from colonialism and capitalist expansion (Merino, 2013). Weber celebrated this theoretical model as a formal and scientific paradigm, then, other perspectives on the juridical were irrational ‘anti- formal tendencies of modern Law’ (Kennedy, 2004: p. 1052), such as Marxism and Schmitt’s decisionism (see 2.2). Liberal legality, however, remained attached to a specific nation-state, and the fact that the anti-formal juridical paradigms accompanied totalitarian political projects such as communism and fascism, led to the argument that the only path of civilisation and humanity was the reform and reinforcement of the liberal system.
Indeed, as a result of the tragic consequences of the Second World War, the academia and global-policymakers proposed the strengthening of liberal legality and human rights. Hannah Arendt (1973) criticised the fact that, for the international system, the protection of human rights depended on the formal recognition of the state (citizenship). She then proposes ‘the right to have rights’ as a right of any person to belong to the humanity and as such this right must be protected not only by specific states but by the whole of humanity. It could be said that the ‘right to have rights’ is the theoretical foundation of the modern system of human rights composed by declarations, international courts, agencies, etc. and the allegations that universal human rights overcome ideologies and cultures (Zechenter, 1997).
69 In this context, the debates between cultural relativism and universalism emerged. The cultural relativist approach became evident when the American Anthropological Association (AAA) criticised the Universal Declaration of Human Rights of 1948 because of its omission of collective rights and the over-emphasis of individual-liberal rights (Brown, 2008). Cultural relativists also criticised the universalism of human rights and its de-contextualisation by ignoring social and institutional factors in the recognition and exercise of rights (Pollis, 2000, Donnelly, 1984; Brown, 1997). The universalist response typically highlights how relativist arguments can justify authoritarian governments (Pollis, 2000, Harris-Short, 2003; Orend, 2002). They propose a particular intercultural dialogue that would allow for the universalisation of rights (Na’im, 1992) or the identification of universal principles for the good life (Nussbaum, 1997), or the inclusion of Others (Howard, 1995), or the development of formulas in which universal values could be internalised by any culture (Zechenter, 1997).
This kind of intercultural dialogue is problematic. It does not propose a real dialogue because it assumes the liberal framework as given and inexorable. In fact, the inclusion proposed is directed to deny cultural differences and the abstract consensus proposed remains highly transcendental and empty, disregarding the real social dynamics in the recognition and exercise of rights.
In this scenario, a new group of scholars who emphasise the use and construction of human rights by social movements has been emerging in the last few years. These scholars critically engage with the discourse and institutions of human rights (contrary to Marxists and cultural relativists) in order to use them for emancipatory agendas (Santos, 2002; Stammers, 1999). Thus, human rights are observed as tools for the subalterns (Onazi, 2009) and counter-hegemonic struggles (Rajagopal, 2006). Santos (2002) argues that hegemonic devices such as liberal rights and laws can be used for non-hegemonic agendas, moreover, liberal strategies can be very useful for these aims: “Law is not emancipatory or non-emancipatory; emancipatory or non-emancipatory are the movements, the organisations of the subaltern cosmopolitan groups that resort to law to advance their struggles” (Santos, 2002: p. 495).
From my perspective this approach is problematic because it tends to exalt certain neutrality of liberal legality and omits the fact that it is embedded in capitalism and Western modernity. The limitations of the use of the liberal framework by indigenous peoples illustrate this problem. When the indigenous movement became an international movement in the seventies, human rights was not thought to be a proper discourse for their claims because this discourse was seen as an expression of the civilising rhetoric of colonialism (Engle, 2011). According to Engle (2011) the main strategy for indigenous peoples in Latin America was self-determination or autonomy (indeed indigenous peoples used different words to express the same idea, such as the governance of their territory and social organisation). Thus, influenced by the anti-colonialist movement, indigenous movements used the international legal framework based on self- determination instead of human rights to move their agenda forward.
However, as the international system was reluctant to listen to indigenous movements, they had to adapt their claims to the institutional framework of human rights. They have obtained consequently favourable decisions at International Courts, but also many
70 difficulties exist, such as the lack of enforcement, lack of recognition of territorial rights and the right of consent, the expansion of extractivist activities, among other issues already mentioned.
Kennedy (2005) argues that the dominant discourse and institutionality of human rights des-emphasises other important emancipatory strategies. In fact, international instruments and discourses highlight terms such as human rights, consultation or participation, but at the same time obscure other important terms such as self- determination, territorial rights or indigenous consent (Merino, 2013). It is also relevant to note that the emphasis on participation over redistribution is problematic in the current human rights discourse (Kennedy, 2005). This is evident with the decreasing attention given to social and economic rights (Etham, 1995; Leckie, 1998), even though these have been established in the Universal Declaration of 1948 and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).