Autonomy Within Borders: Models of Self-Government for Indigenous Groups in the Context of Globalization
by Francisco J. Gonzalez
Paper Completed as Part of the Requirements for the Course Directed Research in International Protection of Minority Rights Prof. Howard Vogel Hamline University School of Law Spring 2000
Acknowledgments . The inspiration for this project cam from a my close friendship with Ruben Mateo Sebastián, a Kanjobal Maya from Guatemala, who told me about he sorrows of his life back home, the injustices he suffered as a refugee, and the hope that one day he could find some peace. A Juanita, gracias por toda tu paciencia, apoyo y cariño
Table of Contents Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Objectives of the Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 II. Indigenous Peoples and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. The Role of the International Labor Organization (ILO) . . . . . . . . . . . . . . . . . . . . . . .10 2. The Role of the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3. The Role of the Organization of American States (OAS) . . . . . . . . . . . . . . . . . . . . . . 14 4. International Law as Tool for Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 III. Chiapas: The End of the 12 bak’tun . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 1. Free Trade and the Maya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. The Zapatista Uprising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 3. Perspectives on Chiapas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 IV. The Economic and Political Effects of Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 1. The Guardians of Globalism: WTO, IMF and the World Bank . . . . . . . . . . . . . . . . . 25 2. Globalization and the Nation-State: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 V. A Model of Self-government in the Globalization Age: Comunidades Autónomas . . . . . . . .29 1. The Spanish Model: Everything But Independence . . . . . . . . . . . . . . . . . . . . . . . . . . 30 VI. The Future: Indigenous Peoples and Economic Globalization . . . . . . . . . . . . . . . . . . . . . . . 33 VII. Modes of Self-government for Indigenous Peoples: Thinking Locally, Acting Globally . .37 1. Alternatives for Effective Pan-Indigenous Cooperation . . . . . . . . . . . . . . . . . . . . . . . 38 VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Introduction On October 12, 1492, a Genovese sailor named Christopher Columbus, sailing under the flag of the recently-unified Kingdom of Spain, got lost on his way to Asia and landed on the shores of the island of Guanahani (now San Salvador, in the Bahamas islands).1 There he made contact with the local people which he mistook for inhabitants of India. These so-called Indians, the Taino, had established a civilization that stretched across the islands of the Caribbean, from Cuba to Trinidad.2 In 1492, there were up to a million Tainos living in the Caribbean; fifty years later, after enduring massacres, slavery and European-introduced diseases, they numbered less than 25,000, and by 1600 they became extinct as a people.3 The fate of the Taino was eventually shared by most of the Indigenous peoples of the Americas, Australia, and the South Pacific, as Europeans expanded their economic and military power across the world during the next 500 years. This historical experience is at the core of the very term “Indigenous communities,” which are best defined as “peoples traditionally regarded, and self-defined, as descendants of the original inhabitants of lands with which they share a strong, often spiritual bond. These peoples are, and desire to be, culturally, socially and/or economically distinct from the dominant groups in society, at the hands of which they have suffered, in past or present, a pervasive pattern of subjugation, marginalization, dispossession, exclusion and discrimination.”4 1Irving Rouse, The Tainos: Rise and Decline of the People Who Greeted Columbus, 142 (Yale Univ. Press
2Id. at 5-7. 3William M. Denevan, ed., The Native Population of the Americas in 1492, 37 (Univ. of Wisconsin Press
4Sigfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 Harv. Hum. Rts. J. 57,115 (1999). 4
The era of military conquest, slavery and genocide against Indigenous peoples is now, for the most part, over, but the legacy of the past represent a formidable obstacle to achieving a meaningful reconciliation between Indigenous peoples and the nation-states that occupy their ancestral lands. In general, Indigenous peoples still suffer from poverty, malnutrition, unemployment, alcoholism, cultural degradation, misappropriation of their natural resources, and lack of effective participation in government. For their part, Indigenous peoples across the world have organized and taken action to protect their lands, their culture and their identity. While these efforts have produced some real policy changes, or al least drawn attention to their claims for justice, changes in the international economic system now present additional challenges to Indigenous peoples worldwide. Globalization has the potential to become a more effective eradicator of Indigenous’ cultures than the swords of the Spanish conquistadores or the rifles of United States Cavalry. Economic globalization, the ultimate triumph of free and unbridled market forces upon the exchange of goods and services, presents a challenge to communities engaged in marginal economic activities and, while Indigenous peoples will not be the only ones affected, their already disadvantaged position makes them extremely vulnerable to large-scale dislocation resulting from their inability to compete in the new world economy. I. Objectives of the Paper This paper is designed to present an overview of rights of Indigenous peoples to political self-determination under international law; to describe how Indigenous peoples themselves perceive the need for, and benefits of, self-determination; and to explore how globalization 5
intersects with the issues of national sovereignty and self-determination. The focus will be on presenting the necessary characteristics that any form of self-government must have in order for Indigenous peoples to develop according to their own needs, while simultaneously addressing the interests of the national governments and the majority society, as well as the effects of economic globalization. This paper will analyze the current struggle of the Indigenous peoples of the Mexican state of Chiapas, where the issues of economic liberalization, national sovereignty and Indigenous rights first captured the world’s attention with the armed uprising of the Zapatistas on January 1st, 1994. While not the most violent conflict involving Indigenous peoples, the situation in Chiapas is the first armed conflict arising out of the perceived devastating impact of globalization.5 In addition, the constitutional framework developed by Spain, the Comunidades Autónomas or Autonomic Communities, will be presented as a working model of an effective form of self-government. The Spanish system provides an example of how a distinct ethnic minority can have autonomy within a nation state, at the same time that it also has an independent presence in international organizations such as the European Union. The Comunidades Autónomas and similar modes of self government short of independence represent an increasingly adopted alternative in solving internal ethnic-based conflicts, and may in fact become the norm during the 21st century.
II. Indigenous Peoples and International Law
5 Declaración de la Selva Lacandona [Statement from the Lacandon Forest], EZLN: Documentos y Comunicados 33-35 (Edición Era, Mexico, 1994). 6
The aftermath of the Second World War and the Holocaust gave impetus to the need to recognize and respect basic human rights. The United Nations Universal Declaration of Human Rights,6 and the United Nations Covenants7 established a long-overdue framework designed to identify these rights and promote their observance. Other conventions (against racism, discrimination, genocide and torture, and promoting equal rights for women and children) serve to address specific issues of concern.8 These treaties ensure religious freedom, guarantee self-determination of peoples, and even protect the right of minorities to the preservation and enjoyment of their cultural heritage. It is important to emphasize that most Indigenous peoples face similar challenges in their relationships with modern majority societies. Prof. Sigfried Wiessner identified the following sources of confrontation and misunderstanding: “[F]irst, Indian freely shared, not exclusively controlled land was taken away. Second, the conqueror's way of life was imposed. Third, political autonomy was drastically curtailed. Fourth, indigenous peoples have often been relegated to a status of extreme poverty, disease, and despair. Five basic claims of indigenous peoples arise from this condition: (1) traditional lands should be respected or restored, as a means to their physical, cultural, and spiritual survival; (2) indigenous peoples should have the right to practice their traditions and celebrate their culture and spirituality with all its implications; (3) they should have access to welfare, health, educational and social services; (4) conquering nations should respect and honor their treaty promises; and (5) indigenous nations should have the right to self-determination.”9 While under international law, as already pointed, there is explicit recognition of rights 6Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rs Sess., 67th Plen, Mtg., U.N.
Doc. A/810 (III) (1948).
7International Covenant on Economic, Social and Cultural Rights, 999 U.N.T.S. 3 (1976); International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1976). 8see Convention on the Rights of the Child, G.A. res. 25 (XLIV), 44 U.N. GAOR, Supp. 49, U.N. Doc. A/RES/44/25 (1989); see also International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (1969). 9Wiessner, supra note 4, at 98-99. 7
and principles of general application that may provide redress to some of the above-mentioned issues of concern for Indigenous peoples “[w]hat is missing in the broad-based international human rights instruments . . . is a specific protection of the distinctive cultural and group identity of indigenous peoples as well as the spatial and political dimension of that identity, their way of life.”10 The religious significance of land is one of the areas not addressed under international law. For example, Native American tribes in the United States continue to demand special protection for sacred sites located not only inside their reservations, but also on lands owned by both government agencies and private citizens.11 None of these issues are specifically addresses under existing human rights covenants. The U.N. Covenants do not mention property rights at all, nor are sacred objects protected, unless this could be constructed as falling within the general right to the free exercise of religion.12 In addition, the Genocide Convention is not designed to include assimilation/cultural extinction, or the development of traditional sacred lands and resulting environmental damage, all of which would result in the destruction of an Indigenous person’s identity.13 The Coordinator of the Indian Nations Union, a Native American policy and advocacy organization, stated the problem as follows: 10Id. at 99. 11“Tribes fought -and are still fighting- to protect cemeteries and sacred sites . . . from coal and uranium strip mines, power plants reservoirs . . and other desecrating developments. They opposed pothunters, collectors, museum expeditions, and archaeologists who dug up their ancestors’ graves and carried away their remains and artifacts without tribal permission or supervision.”- Alvin M. Josephy. Jr. Now That the Buffalo’s Gone: A Study of Today’s American Indians, 90 (Univ. of Oklahoma Press 1982). 12Wiessner, supra note 4, at 99. 13Id. 8
“[W]hen the government took our land . . . they wanted to give us another place . . . But the State, the government, will never understand that we do not have another place to go. The only possible place for [indigenous] people to live and to reestablish our existence, to speak to our Gods, to speak to our nature, to weave our lives, is where our God created us . . . We are not idiots to believe that there is the possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life . . . [T]he only thing we have is the right to cry for our dignity and the need to live in our land.”14 Eventually, further developments in international law (led by the active participation of Indigenous communities and organizations) prepared way for the discussion and enactment of Indigenous-specific international human rights instruments.
1. The Role of the International Labor Organization (ILO) The first international group to adopt measures in response to Indigenous concerns was a specialized agency of the United Nations, the International Labor Organization (ILO). However, the ILO’s first initiative, ILO Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries (enacted in 1957), “placed little value on indigenous cultures as such, focusing instead on the goal of integration and assimilation rather than on the protection of the unique characteristics and lifestyles of Indigenous populations.”15 A new agreement adopted in 1989 as ILO Convention No. 169 Concerning Indigenous
14Id. 15Wiessner, supra note 4, at 100. 9
and Tribal Peoples in Independent Countries, went much further in addressing Indigenous concerns and rejecting assimilation as a valid policy objective.16 As of March 2000, the Convention has been ratified by ten countries, including Bolivia, Colombia, Costa Rica, Denmark, Guatemala, Honduras, Norway, Mexico, Panama, and Peru. The convention recognizes the right of Indigenous peoples to live and develop as distinct communities, with control over their legal status, lands, internal structures, and development in environmental security. It guarantees indigenous peoples' rights to ownership and possession of the total environment they occupy or use, but it does not recognize their right to political independence.17
2. The Role of the United Nations In 1982 the United Nations Economic and Social Council (ECOSOC) established a "working group" to act as a forum devoted exclusively to Indigenous issues, including the development of international legal standards for the protection of Indigenous peoples’ human rights.18 The Working Group on Indigenous Populations agreed on a draft Declaration on the Rights of Indigenous Peoples in 1993, which embodies “the most affirmative intergovernmental response yet to the claims of Indigenous peoples.”19 The Draft Declaration directly addresses the 16Id. 17Id. 18Robert A. Williams, Jr. Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous People’s Survival in the World, 1990 Duke L.J. 660, 676 (1990). 19Wiessner, supra note 4, at 102. 10
concerns raised by the Indigenous people’s themselves during the extensive process of preparing the document.20 The most important of these was the recognition of the right to self-determination (art. 3).21 The Declaration also identified an array of specific collective rights, such as the right to maintain and develop their distinct political, economic, social and cultural identities and characteristics (arts. 6-9).22 In addition, the rights of Indigenous peoples to create their own their legal systems and to participate fully the political, economic, social and cultural life of the nationstate are also recognized.23 The rights guaranteed to Indigenous peoples as groups include the right to observe, teach and practice tribal spiritual and religious traditions; the right to maintain and protect manifestations of their cultures, and to be protected against ethnocide (defined as including “any act which has the aim or effect of depriving [Indigenous peoples] of their ethnic characteristics or cultural identity [or] any form of forced assimilation or integration, [such as the] imposition of foreign life-styles.”24 Also listed are the rights to maintain and use tribal languages, to transmit their oral histories and traditions, to education in their language and to control over their own educational systems (arts. 14 and 15).25 They are afforded the right to maintain and develop their political, economic and social systems, and to determine and develop priorities and strategies for exercising their right to development (arts.21 and 22).26 The treaties between 20Williams, supra note 18, at 685-686. 21United Nations Economic and Social Council, Draft United Nations Declaration on the Rights of Indigenous Peoples (1994). 22Id. 23Id. at arts. 15-20. 24Williams, supra note 18, at 687. 25Draft Declaration, supra note 21. 26Id. 11
Indigenous peoples and nation-states should be recognized, observed and enforced (art. 36).27 Regarding land claims, the Draft Declaration supports the right of Indigenous people to own, develop, control, and use the lands and territories which they have traditionally owned or otherwise occupied and used, including the right to restitution of lands taken without their free and informed consent, with the option of providing just and fair compensation wherever such return is not possible (art. 27).28 Lastly, and of significant relevance for the protection of genetic and intellectual property rights, the Draft Declaration indicates that Indigenous peoples are entitled to the recognition of full ownership over cultural and intellectual property, including their sciences, technologies, including human and other genetic resources, seeds, medicines, and knowledge of the properties of fauna and flora (art. 29).29 In the context of economic globalization, these rights will acquire increasing relevance. The Draft Declaration represents a significant improvement over ILO Convention No. 169 in its statements on self-determination, land and resource rights, as well as political autonomy.30 In addition, the actual process of crafting and debating this Declaration has already yielded some benefits, as explained by Prof. Robert A. Williams: “[The ensuing] race discourse has functioned effectively in generating as shared, empowering vocabulary and syntax foe Indigenous peoples. The discourse of international human rights has enabled Indigenous peoples to understand and express their oppression in terms that are meaningful to them and their oppressors. Thinking in terms of rights has organized Indigenous peoples on a global scale to combat their shared experiences of 27Id. 28Id. 29Id. 30Wiessner, supra note 4, at 103. 12
being excluded and oppressed by the dominant world order.”31 With more than 100 Indigenous organizations participating in the crafting of the Declaration, the resulting document reflects the growing sophistication and skill of Indigenous peoples in presenting their points of view and asserting their presence on the world stage. The formal adoption of the Declaration by the United Nations is scheduled to take place before the end of the International Decade of the World's Indigenous People in 2004.
3. The Role of the Organization of American States (OAS) The OAS did not begin the process of drafting and adopting a document addressing the specific concerns of the Indigenous peoples of the Americas until fairly recently. In 1989, the OAS General Assembly recommended that the Inter-American Commission on Human Rights prepare an instrument to protect the rights of Indigenous peoples. In September 1995 the first draft was sent to governments, Indigenous organizations and other entities for comments. The Inter-American Commission for Human Rights approved the Proposed American Declaration on the Rights of Indigenous Peoples.32 The Commission also made the draft public so it could be considered by the governments, peoples, and interested organizations. The Declaration is now scheduled to be passed at the June 2000 meeting of the OAS General Assembly.33 The American Declaration is similar to the UN Draft Declaration in scope and purpose. The Preamble recognizes the important role of Indigenous communities in many American 31Williams, supra note 18, at 701. 32Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. C.H.R., 1333rd
meeting., OEA/Ser/L/V/II. 95, Doc. 6 (Feb. 26, 1997).
33Wiessner, supra note 4, at 105. 13
countries, and states that Indigenous peoples constitute an "organized, distinctive and integral segment of their population and are entitled to be part of the national identities of the countries of the Americas” and “have special roles to play strengthening state institutions and in establishing national unity based on democratic principles.”34 The American Declaration stresses that the rights recognized to Indigenous peoples do not include any rights that may threaten “boundaries between states" or the “sovereign equality, territorial integrity and political independence of the states” (arts. 25 and 26).35 While secession is rejected, however, Indigenous peoples are recognized as having the right to self-government, the formulation and application of indigenous law (arts. 15 and 16).36 The spiritual and economic importance of the environment to Indigenous peoples is recognized, and respect for it is to be promoted by way of Indigenous culture and ecology (arts. 12 and 13).37 In addition, under art. 13, traditional forms of land tenancy, use and ownership will be recognized, and the exploitation of natural resources within traditional lands must be done with the participation of Indigenous peoples. Intellectual property rights (including rights to “human and genetic resources” and “knowledge of plant and animal life”) are also recognized under art. 20.38 In conclusion, the American Declaration represents “a major step toward a more effective system of protection of Indigenous rights not only in the Western hemisphere, but beyond. It reflects a growing consensus on the minimum threshold of legally enforceable claims of Indigenous communities. It relies more on the remedy of empowerment and self- help than on governmental action to remove the plight 34American Declaration, supra note 32. 35Id. 36Id. 37Id. 38American Declaration, supra note 32. 14
of the First Nations. It places a high value on individual choice. It excludes the option of secession. On the other hand, internal autonomy of Indigenous nations is promoted, over a wide array of societal issues. The Declaration goes against traditional Western thought in its affirmation of the rights of groups. Its respect for Indigenous spiritual beliefs and practices as constitutive of identity is reflected in a dramatic legal recognition of the traditional Indigenous, inclusive ways of dealing with nature, in the use of land, air, water and other living and nonliving resources of the planet.”39 4. International Law as a Tool for Change Once adopted by their respective institutions, the UN and OAS Declarations will provide the juridical framework, under international law, for the recognition of collective and individual rights specific to Indigenous peoples. These Declarations will also provide models to which compare and contrast domestic legislation from the individual nation-states, thereby highlighting deficiencies and shortcomings as applied to Indigenous communities. Also, the explicit recognition of these rights, specially the rights to self-government and to protect their culture and traditions, will provide Indigenous peoples with powerful moral and legal arguments with which to press their demands for reform. The increased political activism of Indigenous organizations, responsible in part for starting the processes that led to the drafting of the UN and OAS Declarations, is also represented in other forms of continuing struggle (including armed resistance) against the forces of oppression and exploitation, specially in Latin America. In 1994, the plight of Indigenous peoples became the focus of worldwide attention, the result of dramatic events taking place in the remote jungles of Chiapas, Mexico. III. Chiapas: The End of the 12 bak’tun40 39Wiessner, supra note 4, at 107. 40According to the ancient Maya calendar, based on a cyclical concept of “time”, the Universe is destroyed and reborn at the completion of the 12th bak'tun (every 144,000 years). The end of 15
The state of Chiapas, located in the southwestern part of Mexico, is simultaneously one of the poorest in terms of per capita income, and one of the richest regarding natural resources.41 The Indigenous people, mostly related Maya groups such as the Chol, Tzotzil and Tojolobal, comprise around 30 percent of the total population.42 The Maya had to endure the confiscation of lands and other forms of exploitation during the Spanish colonial period and under Mexican rule, and even the Revolution of 1910 failed to bring any improvements.43 In essence, the Maya were free to continue with their traditional agricultural practices, raising corn and beans on communal land parcels (ejidos) both for sale and for their own use, while supplementing their income working at coffee plantations and other
the bak’tun is heralded by changes both in Nature and in human society. Traditionalists among today’s Maya people of Central America still believe in the ancient calendar and interpret current events accordingly. The end of the 12th bak’tun, leading to a new Creation, will occur on December 23, 2012. See generally Charles Gallenkamp, Maya: The Riddle and Rediscovery of a Lost Civilization (Viking Penguin Inc., 1985).
41Among Chiapas’ main products are “...petroleum, electricity, cattle, money, coffee, banana, honey, corn, cacao, tobacco, sugar, soy, melon, sorghum, mamey, mango, tamarind, avocado. These raw materials, thousands of millions of tons of them, flow to Mexican ports and railroads, air and truck transportation centers. From there they are sent to different parts of the world: the United States, Canada, Holland, Germany, Italy, Japan, but with the same fate--to feed imperialism. A handful of businesses, one of which is the Mexican State, take all the wealth out of Chiapas and in exchange leave behind their mortal and pestilent mark: in 1989 these businesses took 1,222,669,000,000 pesos from Chiapas and only left behind 616,340,000,000 pesos worth of credit and public works. In Chiapas, Pemex [the national oil company], [e]very day suck out 92,000 barrels of petroleum and 517,000,000,000 cubic feet of gas. They take away the petroleum and gas, and in exchange leave behind the mark of capitalism: ecological destruction, agricultural plunder, hyperinflation, alcoholism, prostitution, and poverty. Thirty-five percent of the coffee produced in Mexico comes from this area. The industry employs 87,000 people. Forty- seven percent of the coffee is for national consumption and 53% is exported abroad, mainly to the United States and Europe. [While] in 1988 a kilo of pergamino coffee was sold abroad for 8,000 pesos, [t]he [local] producers were paid 2,500 pesos or less.”- Subcommander Marcos, Chiapas: The Southeast in Two Winds A Storm and a Prophecy (visited May 5, 2000) <http://www.ezln.org/SE-in-two-winds.html>. 42Jorge A. Vargas, NAFTA, the Chiapas Rebellion, and the Emergence of Mexican Ethnic Law, 25 Cal. W. Int’l. L.J. 1, 7 (1994). 43Vargas, supra note 42, at 13. 16
1. Free Trade and the Maya In the late 1970's, continued economic crisis brought up by irresponsible financial practices by the Mexican central government and the international banking community, put the Mexican economy in disarray.45 In order to effect the restructuration of both the agricultural and industrial sectors, the government embarked in a program of privatization and neoliberal economic practices.46 This culminated with the negotiation of the North American Free Trade Agreement (NAFTA) between Mexico, the United States and Canada, designed to progressively eliminate all tariffs and other barriers to goods and services among the parties to the agreement, which entered in effect on January 1st 1994.47 Initially at least, it was Mexico’s agricultural sector which was most directly affected by NAFTA, since the impetus was now placed on the development of “agricultural projects involving economies of scale, demanding capital-intensive technologies [ . . . ] and efficient business management techniques.”48 For the Indigenous people as well as rural campesinos (peasants), the most obvious and devastating effect of NAFTA would be to allow the importation of corn from the US and Canada, where superior farming conditions and technological resources yielded corn of better quality at 44Id. 45“Expansionary government policies, currency over-evaluation, capital flight...over-reliance on oil revenues...[and] loose international borrowing ultimately led to Mexico’s undoing”- Andy Gutierrez, Codifying the Past, Erasing the Future: NAFTA and the Zapatista Uprising of 1994, 4 Hastings W.-N.W. J. Envl. L. & Pol’y 143, 150 (1998). 46Id. at 151. 47Vargas, supra note 42, at 19-20. 48Vargas, supra note 42, at 19. 17
lower prices.49 The Indigenous farmers and the poor campesinos, struggling to farm on marginal lands using traditional methods, are simply unable to compete. In theory, the Indigenous farmers and the peasants could switch to other agricultural products better suited to the climate and conditions than corn. For instance, even before NAFTA, Mexican vegetables and other fresh produce were supplying a large share of the US market during the winter months.50 However, the main beneficiaries of this booming export trade are not the small farmers, but large agribusiness with adequate capital investment. With the Mexican government elimination of most assistance programs and subsidies, small farmers have neither the resources nor the technical assistance to switch from traditional crops like corn to export crops.51 In 1997, after three years under NAFTA, “Mexico has quickened the pace toward food dependency and peasant marginalization: the US is providing more and more of Mexico’s basic grains, namely corn and wheat, and Mexico is in turn producing more and more fruits and vegetable products consumed by US families. While this may represent a more efficient allocation of productive resources and lower regional food prices, it may very well lead to what peasants have feared all along-their “ethnic cleansing” from the Mexican countryside.”52
2. The Zapatista Uprising On January 1st 1994, the day NAFTA entered into effect, armed units of a then unknown group, the Ejército Zapatista de Liberación Nacional (Zapatist Army of National Liberation, 49Gutierrez, supra note 45, at 154-155. 50Id. at 156. 51Id. at 157. 52Gutierrez, supra note 45, at 158-159. 18
named after Emiliano Zapata, legendary Indigenous leader of the 1910 Mexican Revolution) or EZLN, attacked police and military posts all across Chiapas, and managed to take control of several large towns.53 The government was caught by surprise, but the Mexican Army managed to evict the rebels from most of their positions after a few weeks of intense fighting. The members of the EZLN, the Zapatistas, are overwhelmingly Indigenous peoples. The Comandantes (Commanders) or top leaders are also local Maya men and women. However, the chief spokesperson, and military tactician of the organization is an enigmatic non-Indigenous Mexican known only as Subcomandante (Sub-Commander) Marcos.54 The Zapatistas, despite their eventual defeat on the battlefield, managed to win the propaganda war and put the government in the defensive.55 In early March 1994, the EZLN released a statement, the Pliego de demandas, indicating the objectives of the uprising.56 Among the most prominent items: self-government for Indigenous peoples at the municipal, regional and community levels; return of land to the Indigenous communities, together with technical and capital assistance, as well as guaranteed prices for traditional crops such as corn, beans and coffee; renegotiation of NAFTA in order to take into account the needs of Indigenous communities; and the preservation of Indigenous languages, cultures and traditions by allowing the communities autonomy regarding education and related cultural matters. Unwilling to scare away foreign investors by prolonging the conflict, and anxious to 53Id. at 143-144. 54See generally EZLN: Documentos y Comunicados , supra note 5. 55For example, the Ejército Zapatista de Liberación Nacional has a well designed and run web page (http://www.ezln.org), which includes information in several languages and links to support organizations. 56Pliego de demandas (List of demands), EZLN: Documentos y Comunicados 178-185 (Edición Era, Mexico, 1994) 19
reassure their NAFTA partners, the Mexican government entered into negotiations with the Zapatistas. After a protracted period of negotiations, the Government and the rebels agreed to a wide-ranging set of proposals, the San Andrés Accords, in February of 1996.57 While Mexico has signed and ratified the ILO Covention169 regarding Indigenous rights, and made specific recognition of the cultural rights of Indigenous people with a 1992 amendment to the national constitution,58 the agreement between the government and the Zapatistas established for the first time a detailed road map to reshape relations between the state and the Indigenous communities of Mexico. The most striking terms of the San Andres accords related to the right to self-government for Indigenous peoples:59 1) the Mexican government pledged to amend the Constitution to reflect that Indigenous peoples have the right to self-government, and implicitly recognize that Indigenous rights predate those included on the Constitution and thus cannot be granted, created or amended by the State without the consent of these communities; 2) Indigenous communities will have the power to adopt laws, procedures and institutions for internal conflict resolution. Also, these communities will be able to form their own governing institutions according to their traditional and customary practices; 57Pronunciamiento conjunto que el Gobierno Federal y el EZLN enviarán a las instancias de debate y decisión nacional (Joint statement from the federal government and the EZLN, to be sent to the appropriate national decision-making bodies), Jan. 16, 1996 (viewed March 26, 2000) <http://spin.com.mx/~floresu/FZLN/dialogo/documento-1.htm> 58Constitución Política de los Estados Unidos Mexicanos, art.4. 59Pronunciamiento, supra note 57. 20
3) Indigenous villages and communities can form associations or administrative units, which will be recognized by the Mexican government as separate from the existing state or municipal jurisdictions. 4) The government will support all efforts by the Indigenous peoples to preserve and enhance their languages and cultures, and also include the subject of Indigenous cultures as part of the educational curriculum of all public and private schools across the nation. The San Andres Accords, incorporating much of what the EZLN has proposed on their earlier Pliego de demandas, clearly reflect the influence of the Indigenous rights declarations from the ILO, the UN and the OAS. Both the Mexican government and the EZLN utilized the language and concepts developed around these international documents during the negotiations and on the final agreement. Also, the EZLN leadership (particularly Sub-Comandante Marcos), emphasized the broader international context of their struggle, stressing the continued threat to Indigenous and poor peoples world wide represented by free trade and globalization.60 However, in November of 1996, the President of Mexico, Ernesto Zedillo, refused to implement the San Andres Accord, indicating that the terms negotiated by his own representatives were unacceptable. Instead, the government suggested a number of counter proposals that sharply limited the scope of self-government and the rights of Indigenous peoples to create their own judicial, cultural and administrative organisms.61 Viewing the actions of the 60“Globalization” can be defined as the world-wide adoption of free-market capitalism, characterized by deregulation and privatization of all economic activity. See generally Thomas L. Freidman, The Lexus and the Olive Tree: Understanding Globalization (New York: Farrar, Straus and Giroux, 1999). 61La contrapropuesta del Ejecutivo, firmada por Ernesto Zedillo y presentada a la Camara de 21
President as yet another example of betrayal and lies from the government, the Zapatistas refused to engage in further negotiations. The impasse continues to this day. While a cease fire between the government and the guerrillas remain in place, political violence by pro-government death squads continues.62 3. Perspectives on Chiapas The uprising in Chiapas is symptomatic of the many conflicts caused or exacerbated by the effects of globalization. Indigenous rights, democratic reforms, environmental protection, social welfare measures and hosts of other socioeconomic issues must be addressed before the world’s economies can be finally and permanently integrated under globalization.63 The official aims of the Zapatista leaders are clear: self-government for Indigenous peoples; the restitution of their ancestral lands; end to economic exploitation and to the dislocation caused by NAFTA and globalization; and the establishment of real democracy in Mexico. Cultural survival, however, is the underlying principle that ties together their specific political and economic goals. For the Maya of Chiapas, as well as all other Indigenous communities, their relationship to the land, to the environment and to their traditional ways of farming, are all necessary and interrelated elements of their culture. In essence, the Maya languages, religious practices, social and family structures, myths, legends and folklore, cannot
Senadores (mar. 1998) [The president’s counteroffer, signed by Ernesto Zedillo and presented to the Senate] (March/1998) (visited May 5, 2000)
62Among the worst atrocities committed was the massacre of 45 Tzotzil Mayas, mostly women and children, by pro-government militias in the town of Acteal (Chiapas) on December 22, 1997.- La matanza de Acteal [The Massacre at Acteal] <http://spin.com.mx/~floresu/FZLN/archivo/matanza.de.acteal/home.html> 63See generally John Gray, False Dawn: The Delusions of Global Capitalism (New York; The New York Press, 1998). 22
survive independent from land. The very real prospect that globalization would in effect destroy their last ties to their lands, represents more than just economic hardship: it is the equivalent of cultural genocide. For many Maya, the confluence of environmental and economic dislocation caused by globalization, and the resulting social and political upheaval not only in Chiapas or the rest of Mexico, but across most of the world, are all signs that the end of the world is near. Clearly, the tzolkin (ancient calendar) points out to a new beginning, it but cannot predict whether the changes will herald a rebirth of Maya culture, or the final extinction of their traditional way of life. IV. The Economic and Political Effects of Globalization The effects of globalization have been likened to the processes in biology’s evolution theory: “[i]n economic, cultural and environmental realms, globalization unleashes the same Darwinian dynamics of adaptation, natural selection, and extinction.”64 In this new world reality of rapidly changing technologies and other competitive pressures, those who fail to adapt will become extinct. Prof. Jim Chen describes the far reaching effects of these processes as follows: “[g]lobalization menaces the very idea of the nation-state. Inequality within nations and on a global scale challenges the power of the positive state to redistribute wealth . . . globalization has shrunk the degrees of freedom in making public policy. The defeat of all other economic models leaves nations today with few choices beyond what Thomas Friedman calls the “Golden Straightjacket”: making the private sector the primary engine of . . . economic growth, maintaining a low rate of inflation and price stability . . . maintaining as close to a balanced budget as possible . . . eliminating and lowering tariffs on imported goods . . . getting rid of quotas and domestic monopolies . . . [and] opening [domestic] industries. Stock, and bond markets to direct foreign ownership and investment.
64Jim Chen, Globalization and Its Losers, 9 Minn. J. Global Trade 157, 159 (2000). 23
Any society wishing to adopt globalization has exactly one choice.”65 1. The Guardians of Globalism: WTO, IMF, and the World Bank The impetus for worldwide economic integration developed in the aftermath of the Great Depression and the Second World War.66 The leading capitalist countries created several international organizations in order to guide the development of guidelines for commerce, and to facilitate the incorporation of other countries into this system. At the end of the 20th century these organizations, the International Monetary Fund (IMF), the World Trade Organization (WTO) and the World Bank, direct the continuing expansion of globalization across the world. A. The International Monetary Fund (IMF): “Is an international organization of 182 member countries, established to promote international monetary cooperation, exchange stability, and orderly exchange arrangements; to foster economic growth and high levels of employment; and to provide temporary financial assistance to countries under adequate safeguards to help ease balance of payments adjustment.”67 The IMF promotes the benefits of globalization for all: “As globalization has progressed, living conditions (particularly when measured by broader indicators of well being) have improved significantly in virtually all countries. However, the strongest gains have been made by the advanced countries and only some of the developing countries. That the income gap between high-income and low-income countries has grown wider is a matter for concern. And the number of the world’s citizens in abject poverty is deeply disturbing. But it is wrong to jump to the conclusion that globalization has caused the divergence, or that nothing can be done to improve the situation. To the contrary: low-income countries have not been able to integrate with the global economy as quickly as others, partly because of their chosen policies and partly because of factors outside their control. No country, least of all the poorest, can afford to remain isolated from the world economy. Every country should seek to reduce poverty. 65Chen, supra note 64, at 166. 66James A. Cooper, Spirits in the Material World: A Post-Modern Approach to United States Trade Policy, 14 Am. U. Int’l. Rev 957 966-968 (1999). 67International Monetary Fund Home Page (visited May 6, 2000) <http://www.imf.org/external/about.htm> 24
The international community should endeavor--- by strengthening the international financial system, through trade, and through aid --- to help the poorest countries integrate into the world economy, grow more rapidly, and reduce poverty. That is the way to ensure all people in all countries have access to the benefits of globalization.”68
B. The World Trade Organization: The successor organization to the GATT (the series of accords that established the basis for “free trade,” or the eventual elimination of all national tariffs and regulatory restrictions that restrict trade on goods and services), the WTO’s overriding objective is to help trade flow smoothly, freely, fairly and predictably by “administering trade agreements; acting as a forum for trade negotiations; settling trade disputes; reviewing national trade policies; assisting developing countries in trade policy issues through technical assistance and training programmes, and cooperating with other international organizations.69 C. The World Bank: The World Bank Group (encompassing several financial lending and technical assistance organizations) is: “ The world's largest source of development assistance, providing nearly $30 billion in loans annually to its client countries. The Bank uses its financial resources, its highly trained staff, and its extensive knowledge base to individually help each developing country onto a path of stable, sustainable, and equitable growth. The main focus is on helping the poorest people and the poorest countries, but for all its clients the Bank emphasizes the need for: investing in people, particularly through basic health and education; protecting the environment; supporting and encouraging private business development; strengthening the ability of the governments to deliver quality services, efficiently and transparently; promoting reforms to create a stable macroeconomic environment, conducive to investment and long-term planning; focusing on social development, inclusion, governance, and institution-building as key elements of poverty reduction.”70 68Globalization: Threat or Opportunity? International Monetary Fund (visited May 6, 2000) <http://www.imf.org/external/np/exr/ib/2000/041200.htm> 69WTO in brief- The Organization (visited May 6, 2000),<http://www.wto.org/wto/inbrief/inbr02.htm> 70The World Bank Group, What Does the World Bank Do? (Visited May 6, 2000) <http://www.worldbank.org/html/extdr/about/role.htm> 25
The drive toward globalization has resulted in the progressive erosion of the powers of nation-states to address important issues not only on economic and financial matters, but also on related areas such as labor standards and practices (minimum wage and safety requirements), environmental protection, and reduction of government expenditures affecting sectors such as social welfare, health and education.
2. Globalization and the Nation-State: The WTO, due to its position as the enforcer of the GATT and related trade agreements, is most active in the process of diminishing the sovereignty of the nation-states. A principal example of the enforcement powers of the WTO arose out of the cases dealing with certain environmental statutes approved by the United States Congress in the 1980's, prohibiting the importation of tuna and shrimps caught in nets that also trapped and killed dolphins and sea turtles. The WTO decided that the regulations constituted barriers to trade imposed unilaterally by the US in violation of GATT, and enjoined the US from continuing to enforce these regulations.71 The WTO, the IMF and the World Bank are not the only international organizations that assist in the process of globalization at the expense of the nation-states. Regional Economic Arrangements (REMs) such as the European Common Market (now the European Union), the North American Free Trade Agreement (NAFTA), AFTA (Association of South East Asian Nations Free Trade Area) and Mercosur (comprising South American nations) are some 71See generally Eric L. Richards & Martin A. McCrory, The Sea Turtle Dispute: Implications for Sovereignty, the Environment and International Trade Law, 71 U. Colo. L. Rev. 295 (2000). 26
examples of what is a generalized trend: the “regionalization” of economic and, eventually, political power. The specific role played by REMs in support of the WTO hinges on the creation of a greater range of interdependence among nations, as “the main goal of each regional regime is to facilitate the liberalization of international trade by complementing the multilateral regime, i.e., the WTO, rather than promote protectionism for its own wealth regardless of international welfare as a whole.”72 In sum, the greater interdependence among nations created by globalization will inevitably result in a diminution of the nation-states’ sovereign powers. The actual trends suggest that REMs will eventually develop into full “super-states,” such as the European Union, administering large regions of the world. This in turn would require the creation of alternative forms of local administration, no longer limited by the borders of nation-states, but addressing issues with cross-border impact on a regional basis
V. A Model of Self-government in the Globalization Age: Comunidades Autónomas The struggle for self-government, cultural survival and economic well-being is not limited to Indigenous peoples. Ethnic and national minorities across the world are also demanding the recognition of the rights to self-government and the preservation of their separate identities.73 For Indigenous peoples, this represents an opportunity to observe the workings of 72Myung Hoon Choo, Dispute Settlement Mechanisms of Regional Economic Arrangements and their Effects on the World Trade Organization, 13 Temp. Int’l & Comp. L. J. 253, 276 (1999). 73In this paper, the terms ethnic minority will be used to refer to a non-Indigenous group with distinct cultural, racial or linguistic characteristics different than those of the majority population; national minority refers to a group with a history of national sovereignty, as well as cultural, racial or linguistic characteristics different from 27
alternative self-government arrangements that could provide the tools to achieve their social and economic objectives. In addition, by pointing out to those successful examples from a number of diverse countries, Indigenous peoples can strengthen their claim that self-government and cultural diversity are compatible with the sovereignty and territorial integrity of their nationstates. Lastly, important alliances can be established between Indigenous and minority organizations in areas of mutual concern. The potentially important role of these types of supranational group alliances in a future globalized world would seem to be assured. The current constitutional structure of Spain arguably represents the best example of how to integrate large “national” communities, with expansive powers of self-government, within the framework of a modern nation-state. Moreover, Spain’s membership in the European Union, the North Atlantic Treaty Organization (NATO), as well as the WTO and other transnational defense and economic entities provide examples of how local ethnic and national minority communities respond to the challenges of globalization.
1. The Spanish Model: Everything But Independence The modern Constitution of Spain, adopted in 1978 after the end of General Franco’s fascist dictatorship, recognizes the right of autonomía or self-government to “nationalities and regions,” albeit respecting the “indissoluble unity of the Spanish nation.”74 The principal nationalities in Spain represent the original inhabitants of the regions of Cataluña, the Basque
those of the majority population.
74Constitución del Reino de España [Constitution of the Kingdom of Spain]-Art. 2. 28
Country and Galicia.75 All of these nationalities have distinct languages and cultures apart from that of the Castillian or Spanish-speaking majority. General Franco’s regime had violently repressed the culture and identity of these communities, especially in Cataluña, and thus the reestablishment of democracy upon Franco’s death created heightened expectations that any new constitution must provide mechanisms for self-government and recognition of the separate nationalities with Spain.76 Moreover, in order to eliminate the legacy of over-centralization left from the dictatorship, the right of self-government was also extended to the rest of the country, so regions with distinct economic or geographical features can also form Comunidades Autónomas (Autonomic Communities) regardless of whether they can also claim a separate ethnic or cultural identity.77 The 1978 Constitution allows each region a great amount of flexibility in crafting their unique form of Comunidades Autónomas. Depending on the financial strength, needs for services, and strength of the local nationalist sentiments, each region can ask the central government to surrender specific competencias (competencies or areas of jurisdiction).78 While art. 149 (1) of the Spanish Constitution reserves certain areas as “exclusive competencies” of the central government, art. 149 (2) states that “the State can transfer or delegate to the Comunidades Autónomas . . . [those] matters under State control that, because of their nature [can] be transferred or delegated.” Thus, both the central and regional governments are engaged 75During the Middle Ages and until the Kingdom of Castile achieved the political unification of Spain in 1492, these regions were either fully independent kingdoms or semi-independent principalities loosely attached to Castile. 76See generally Stanley G. Payne, Franco’s Spain (University of California, 1967). 77Constitución, supra note 74, art. 143. 78Constitución, supra note 74, art. 148. 29
in a continuing dialog regarding the feasibility of transferring additional competencies to the Comunidades Autónomas. In theory, all central government functions (except those, like defense and immigration policy, that are of national importance and cannot be successfully parceled out among the various regions) could be eventually transferred to the Comunidades Autónomas. In contrast to the system under the United States Constitution, where the states are all admitted on an “equal footing” (having the same powers and relationship with the federal government), the Comunidades Autónomas model of “asymmetrical federalization did not presuppose the ways and means by which the different [regional] entities could be finally [developed]. The formulation of a clear division of powers based upon conventional federal techniques was . . . avoided.”79 In addition, the Comunidades Autónomas can have a role in dealing with nation-states and international organizations. Following the lead of the Basque and Catalan governments, most of the other Autonomic regions have official representatives at the headquarters of the European Union (EU) in Brussels, separate from the Spanish central government delegation.80 Besides having their own official legations before the EU, the Comunidades Autónomas can also have direct participation in a newly created (1995) body of the EU, the Committee of the Regions (COR).81 By creating this new forum, the EU is proving that
79Luis Moreno, Ethnoterritorial concurrence in plural societies: the Spanish Comunidades Autónomas. Consejo Superior de Investigaciones Científicas (Madrid, Spain ) <http://www.iesam.cisc.es/doctrab/dt-9806.htm> 80Informe Pi i Sunyer sobre Comunidades Autónomas 1994, Vol II, 1015-1037(Imprenta Municipal, Barcelona, Spain; 1995). 81See generally Naomi Roth-Arriaza, The Committee of the Regions and the Role of Regional Governments in the European Union, 20 Hastings Int’l & Comp. L. Rev. 143 (1997). 30
“Decentralization, regionalization, and autonomy have become politically acceptable answers to the seemingly intractable problems of nationalism, separatism, ethnic conflict and threat of secession. States . . . generally unwilling to countenance any right to selfdetermination entailing a quest for statehood, have increasingly tried to find ways short of secession that respond to a substate group’s demands. Jordi Pujol, President of the [Comunidad Autónoma of Cataluña], has stated that ‘regionalization is the answer to the need for citizens to express their identities within the European mosaic.’ ”82 While currently the Committee of the Regions has a mostly advisory role within the EU, the inevitable changes to the EU organizational framework resulting from continuing expansion both in membership and on areas of activity (as well as the desire to democratize the administration of the EU) indicate that the COR will become an increasingly important part of the EU power structures.83 At the turn of the millennium ethnic self-determination has come to the fore of the political life in democratic plural societies. The case of Spain offers an example of how multiple identities and political loyalties can be accommodated allowing ethnoterritorial cooperating and agreement between its constituent nationalities and regions. As the example of the Comunidades Autónomas illustrates, multiple concurrences of territorial interests can overcome conflicts, and also provide for a deepening of democracy by means of a closer access of citizens to the political process. VI. The Future: Indigenous Peoples and Economic Globalization Globalization brings with it a transfer of authority and power from the states to the markets. New rules regarding the operation of global markets, and the corporate strategies of multinational companies, have a growing impact in setting the pace for both national and 82Id. at 418. 83Id. at 463. 31
international patterns of economic development. The World Trade Organization, NAFTA, the IMF and other trade-related organizations will be, in the near future, the centers of decision-making regarding not only the terms of commerce between nations, but also of labor, environment, health and education issues. The trend toward forming regional political and economic blocks such as the European Union, Association of South-East Asian Nations (ASEAN), and Mercosur (encompassing South American nations) is also a parallel development resulting from the same realization that sovereign nation-states are no longer able to function in the new global economy alone. For Indigenous peoples, globalization presents difficult challenges, but also opportunities. There is no question that traditional agriculture, mining, forestry and fishing cannot compete with modern businesses active in these same areas. For the Maya of Chiapas, there is almost no possibility that they can continue to depend on their corn and bean crops as a principal source of their income. Even with investment in equipment and training, their marginal lands simply cannot match the productivity and price from foreign suppliers. However, there are alternatives. The Maya, for example, can be active on sectors that provide them with an economic advantage or that allow the development of their unique cultural and human resources. Under the concept of “fair trade” ( that is, commercial transactions only between producers and buyers who agree to rules on decent wages/work conditions, market prices for goods, and using only environmentally sound production methods), Maya cooperatives in Chiapas and in neighboring Guatemala are producing and exporting high-quality coffee to Europe and the United States.84 Coffee and other premium “luxury” agricultural goods thrive on 84 See generally Alicia Morris Groos, International Trade and Development: Exploring the Impact of Fair 32
the marginal lands of the Maya, and also utilize their expertise and availability of manpower to great advantage. Other areas with great potential economic impact are handcrafts and other traditional handmade products such as textiles, traditional decorative and household items made of wood, stone and ceramic.85 Another potential source of income for Indigenous peoples is the ecologically-sound management of natural resources, since they are the unrivaled experts on the use of local plants for medicinal purposes. Many important drugs were developed based on the fact that Indigenous peoples had identified and used particular plant species as medicine, but such knowledge has not resulted in economic benefits for the communities.86 Using their traditional knowledge of the environment, especially in tropical rainforest areas (where modern science has barely begun to study these rich and complex environments), Indigenous communities can cooperate with pharmaceutical companies in identifying and developing new drugs. Indigenous peoples can negotiate with these companies for royalties and the recognition of patent rights, since without their knowledge of plants, the company would have to undertake the very time-consuming and expensive project of researching the environment by themselves. Free and fair trade will provide Indigenous peoples the opportunity to export their products and develop markets worldwide. By carving an economic niche, where they have the advantages of labor costs, skills, marketing and quality, Indigenous communities can m have a
Trade Organizations in the Global Economy and the Law, 34 Tex. Int’l L.J. 379 (1999).
85Id. 86One of the problems is that current Intellectual Property law does not recognize the collective rights of Indigenous peoples to their cultural traditions. Thus, outsiders from Europe and the US are now able to patent (and profit from) traditional medicinal plants. See generally Rosemary J. Coombe, Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conversation of Biodiversity, 6 Ind. J. Global Legal Stud. 59 (1998). 33
stable and dependable source of income. In addition, starting community-based business cooperatives producing traditional goods will be extremely inexpensive. Similar projects have been developed in Latin America and Asia with as little as $50 of initial investment capital.87 Parallel to the development of alternative economic bases, Indigenous peoples must also develop forms of local autonomy in order to promote these economic initiatives. If practicability was not an obstacle, the most logical solution would for the Maya, and all other Indigenous peoples worldwide, to regain their full independence and possession over their lands and resources. While undoing hundreds of years of oppression and exploitation may seems an impossible task, nothing less than this would truly compensate Indigenous peoples for the suffering and devastation inflicted upon them. Since, however, Indigenous peoples must operate within the realm of the possible, the only realistic alternatives at this point center around the development of a form of autonomy geared toward protecting and revitalizing their cultural identity, and broad enough to allow for the economic development of their communities. That is, autonomy within borders, the borders being not only the physical territory of the current nation-states where they live, but also the borders of the national justice, administrative and political systems already in place. Indigenous peoples must realize that, with nation-states becoming increasingly obsolete, the future centers of power will be the multinational economic and political organizations.
VII. Modes of Self-government for Indigenous Peoples: Thinking Locally, Acting Globally
87Morris Groos, supra note 84, at 379-380. 34
For Indigenous peoples, self-determination and political autonomy are but tools to protect and preserve their identity and survival. In general terms, this could be accomplished by developing an education system that promotes their language and culture, as well as by a system of local government (at the village or municipality level) that is based on tradition and customs. Also, in order to promote the better coordination of efforts between diverse Indigenous groups and communities, the right to form their own regional blocks across state lines (in federal nations like Mexico, Australia and the US), and also internationally. The Maya, for example, are dispersed across Mexico, Guatemala, Belize and Honduras. They should be able to form their own “common market” for purposes of economic and cultural development. The terms of the San Andres Accords negotiated between the EZLN and the Mexican government provides a good starting point for creating effective Indigenous forms of community-wide autonomy. Other possible areas for achieving greater levels of self-government within current nation-states include: I- Allowing Indigenous communities to send their own representatives, elected only by Indigenous peoples, to national and state legislatures.. II- Providing indigenous communities (who live mostly in rural areas) with the financial resources to develop their own telecommunication infrastructure in order to facilitate contacts between localities, and also to better integrate the administrative centers of the communities. III- Transferring to Indigenous communities the power to create their own judicial and law enforcement systems, independent from those of the nation-state. This would allow
Indigenous peoples to incorporate, and make enforceable, the provisions of the Indigenous Rights Declarations, on areas such as intellectual property, protection of sacred/historical sites, use of Indigenous languages in legal and administrative proceedings, etc. Eventually, as Indigenous peoples increase their economic power and distinct cultural character, and backed by the precedent set under international law by the UN, OAS and ILO documents recognizing Indigenous rights, they can negotiate with their respective national governments for the delegation of additional areas of responsibility. In this regard, however, the example of Spain’s Comunidades Autónomas is clear: even strong economic and cultural groups like the Catalans, did not want to receive at once all the powers of self-government allowed to them under the Spanish constitution. They simply lacked the trained people and the organized administrative system to do the job. They also realized that, by reclaiming self-government in stages, through negotiations with the central government, there will be less opposition from more conservative sectors who still have fears of the eventual “dismemberment” of Spain. 1. Alternatives for Effective Pan-Indigenous Cooperation There are several arenas in which Indigenous people can succeed in promoting respect for their rights and in achieving meaningful level of self-government. Working with international organizations like the UN and the OAS has already provided Indigenous communities with some concrete gains regarding the recognition of their rights. Indigenous peoples must build on this success and develop broad-based alliances in order to further their goals. In the case of the Maya
peoples of Chiapas, this may take the shape of: I- The creation of a “Pan Maya” League. Formed by communities belonging to the various Maya cultural-linguistic groups, which will elect representatives to this League; which will represent Mayas from Mexico, Guatemala, Belize, Honduras. Representation, however, will be strictly across ethnic lines (Tzetzal, Tojolobal, Yukatek, etc.) and not national borders. The purpose of the organization will be to coordinate cultural, political and economic activities and also to present a unified Maya voice before the UN, the WTO and other relevant international organizations; II- In the Americas, where there are large numbers of Indigenous peoples, a “Pan American” Indigenous group can be successfully created in order to bring closer together the different Indigenous nations of the hemisphere. The main emphasis should be on cultural exchanges between the groups themselves (to foster better understanding of each other) and to facilitate economic cooperation (for example, wealthy US tribes like the Mashantucket of Connecticut can invest in ecologically sound projects to benefit the Kraho of Brazil or Kuna of Panama). III- A stronger presence at the UN, by the creation of an “Indigenous Peoples Organization,” formed by Indigenous leaders from across the world and dedicated to Indigenous issues. This should be a separate agency within the UN at the same level as, for example, UNESCO or the ILO, and not just as a Working Group within ECOSOC. This same approach could be taken at the OAS and in other regional organizations. V- Eventual representation of Indigenous peoples as semi-sovereign nations before the
UN, WTO and other international bodies. Recognizing the diminishing importance of nation-states, Indigenous communities should strive to have their own voice heard where it counts: before the multinational trade and political organizations. At least in the UN, there is precedent for dependent states admitted as full-fledged members of the organization: Ukraine and Belorussia, “republics” of the old Soviet Union (USSR), were given their own seats at the UN General Assembly when the USSR joined the organization). VIII. Conclusion For the last 500 years Indigenous peoples have suffered incredible hardships and challenges. The surviving communities are the proud inheritors of a legacy of brilliant cultural achievement, and determined struggle for survival. The Indigenous peoples of the Americas, in particular, have shown a continued willingness to resist assimilation. There is no doubt that, regardless of what globalization brings, Indigenous peoples will survive. The only question is: will they be allowed to fully-participate in this brave new world, or will they be forced to continue to demand respect for their most basic rights.