Indigenous Women in Latin America: An Effort for Human Rights

By Martinez, Laura | Denver Journal of International Law and Policy, Spring 2018 | Go to article overview

Indigenous Women in Latin America: An Effort for Human Rights


Martinez, Laura, Denver Journal of International Law and Policy


I. INTRODUCTION

The twentieth-century change in perspective of the individual under international law has led to an increase in the rights of the individual, particularly fundamental human rights. Belief in the existence of human rights replaced the legal positivism (1) that had taken hold for the past few centuries. (2) The horrors of the twentieth century's wars and the gradual admission of the existence of colonialism only increased this awareness. The United Nations (U.N.), born in the ashes of World War II, sought to create peace and develop international relations. (3) Over the second half of the previous century, governments and governmental organizations realized that a specific group of people, indigenous people, had spent centuries suffering from those who arrived and claimed title to their lands. (4) Many lost culture and freedom, and governments felt that assimilation, extermination, or forced labor were the proper way to deal with their new country's first inhabitants. (5) Slowly, policy has changed; international organizations, governments, and governmental organizations have developed new ways to honor the rights of indigenous people. (6) Policy conflicts and differences in interests easily arise in this politically-fraught international arena. Most importantly, it has taken time for politicians and world leaders to realize that it is impossible to group all issues relating to indigenous people into one subsection neatly titled "indigenous people." Indigenous women face different issues from indigenous men or children, and country conditions and governments affect the lives and rights of this subgroup. (7) While books could be written on the subject of indigenous rights under international law, this Comment is limited to analyzing the current political and social situation of Latin American indigenous women, individual countries' compliance with international law principles, and actions that could be taken both domestically and internationally to create a more just system where the civil and human rights of these people are not infringed. (8)

II. BACKGROUND

The first few important steps toward international recognition of indigenous rights occurred with the United Nations Educational, Scientific, and Cultural Organization's (UNESCO) Declaration on Race and Racial Prejudice in 1978. (9) The declaration asserted that all people are equal, and that people have the right to be different without being subjected to racism and discrimination. (10) In 1989, the International Labor Organization (ILO) followed with ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries." Unlike declarations, which are not binding under international law, the convention has legal treaty power in all of the ratifying nations--as of January 25, 2018, twenty-two nations have ratified ILO Convention 169. (12)

Importantly, ILO Convention 169 defines indigenous people, something that UNESCO's declaration and later U.N. declarations have never done. (13) The definition of indigenous people under ILO Convention 169 is a two-prong definition where people can self-identify as tribal or aboriginal (pre-colonial). (14) The tribal definition focuses on those whose "social, cultural and economic conditions distinguish them from other sections of the national community." (15) Their status is regulated "wholly or partially by their own customs or traditions or by special laws or regulations." (16) This stands in contrast to aboriginal status, which is based on "descent from populations, who inhabited the country or geographical region at the time of conquest, colonisation or establishment of present state boundaries." (17) This group "retain[s] some or all of their own social, economic, cultural and political institutions, irrespective of their legal status." (18) The ILO thought to allow a more inclusive framework based on criteria because it gave specific factors to be addressed, but also gave the same rights to both tribal and aboriginal groups. …

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