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Eugenio Velasco-Ibarra, ITAM (México) Dovetailing human rights and indigenous legal systems in Latin American constitutions through a reappraisal of the right to self-determination

Under the auspices of the right to self-determination, several Latin American constitutions grant indigenous communities the power to apply their own laws to their internal disputes. In every case, this power is limited to some extent. For instance, in Bolivia, indigenous jurisdictions must “respect the right to life, the right to defense, and all other rights and guarantees established in the Constitution”(Article 190.II); in Colombia, indigenous norms and procedures cannot be “contrary to the Constitution and the laws of the Republic” (Article 246); in Ecuador, the exercise of indigenous jurisdictional authority cannot be “contrary to the Constitution and the human rights recognised in international instruments” (Article 171); and in Mexico, indigenous legal systems are “subjected to the observance of the general constitutional principles, individual guarantees, and human rights, and must respect the dignity and integrity of women” (Article 2.A.II). These vague rules which allow indigenous communities to solve their internal controversies in accordance with their own legal systems on the condition that those systems are compatible with heterogenous standards poses novel and serious challenges for these jurisdictions. In particular, it entrusts judges with the difficult task of adjudicating the constitutionality of constitutionally sanctioned legal systems that are underpinned by distinct, and sometimes antagonistic, value systems on the basis of abstract human rights principles. In this paper, I propose a solution to these challenges that rests on the consideration of some presently underexplored conceptual and normative aspects of the right to self-determination. More precisely, I seek to exhibit the individual entitlements that underlie the collective right to self-determination with a view to systematizing the normative relations between indigenous persons and their communities. I suggest that this approach will enhance the current judicial practice which pins the community’s right to self-determination against the human rights of its members whenever the constitutionality of the acts of indigenous jurisdictions are at issue. In order to justify this claim, I will offer an account of the relevant constitutional developments relating to the recognition of indigenous rights in Latin American constitutions and critically assess the jurisprudence of the apex courts of Colombia and Mexico. I will challenge the narrative of ‘interculturality’ and ‘legal pluralism’ that both the courts and the scholarship have applied to this issue and, instead, offer a more modest and accurate account of the nature of these constitutional regimes. Then, I will focus on the liberal grounding of the right to self-determination that these constitutions recognize in order to expound on the conceptual and normative consequences that follow from it. The fundamental contribution of this paper will consist in demonstrating the advantages of adopting a judicial strategy that, whenever possible, offers a solution to a controversy between an indigenous community and its members by relying only on the right to self-determination. As I will explain in the paper, not only is this approach more sophisticated in conceptual terms but it is also more respectful of the autonomy of indigenous communities and more considerate of the cultural limitations of judges.

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