Chapter 1: Introduction
1.1 Research Motivation
國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
DOI:10.6814/NCCU202100255 1
Chapter 1: Introduction
1.1 Research Motivation
In Latin America, indigenous people are considered weak compared to other ethnic groups, such as the dominant “White Hispanics.” Paredes (2008) states that by looking at the situation in Peru and Ecuador, indigenous people perceives to be secluded from political inclusiveness, in addition to continuous and profound inequalities amongst indigenous and non-indigenous individuals have no cessation. Throughout Latin America, non-indigenous people have been disenfranchised, politically oppressed, and socially excluded from civil services such as health, education, and access to land. The development of indigenous organizations, the politicization of indigenous identities, and the demand for indigenous political rights over the past two decades has challenged historical norms for local governments at all levels in Latin America (Yashar, 1999).
Indigenous people, therefore, face substantial difficulties in integrating and establishing organizations that are able of organizing a continued legal defense of their rights. Nevertheless, in contemporary times, in various nations throughout the region, there has been an increasing number of organizations that have defended and advocated for indigenous people. Mostly claims for political and legal autonomy, for freedom from discrimination, or protection of their
historical territories and natural resources before the national and international courts. These groups include Indigenous communities, indigenous legal defense organizations, non-governmental organizations (NGOs) or alliances of NGOs, and sometimes non-governmental institutions such as human rights ombudsmen (Sieder, 2007).
Furthermore, scholars have paid particular attention to the indigenous political movement
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
2
in the “Andean Region,” which consists of about 34-40 million indigenous people (79%) that reside in this region (Selekman, 2012, p.137). The vast majority of indigenous people are also concentrated in Mesoamerica. This can be illustrated in Guatemala and Bolivia, where
indigenous people amount to over 50 percent of the population, in Ecuador and Peru between 30 and 40 percent, and in Mexico between 10 and 15 percent. A commonly accepted definition of
“indigenous” in international law, the international community identifies three broad conditions for defining who is indigenous: the self-definition as a member of an indigenous community, subordination to dominant society, and historical continuity with pre-colonial societies (Sieder, 2007). Therefore, indigenous groups in different countries have different situations in regards to human rights facilitated by incidences of historical elements as well as subordination for the non-indigenous groups.
Adams and MacLeod (2000) defines Mesoamerica as a “co-tradition” or culturally
interactive area. So, Mesoamerica can be described as an extensive diffusion region which means whatever event that occurred in one area would sooner or later influence the other surrounding regions (Adams, 1991). The legacy of the Mesoamerican cultural customs has been adequately cohesive, distinctive, and inspiring in the history of the geographical area to justify its
recognition with a unique term: “Mesoamerica” (Carmack et al., 2007). Moreover, Mesoamericans have been identified as first, members of a lineage, second, members in a
community, third, speakers of a common language and lastly as Mexicans, Central Americans, or Indians (Carmack et al., 2007). Carmack et. al (2007) also states that these members of the community is made up of different individuals who share common cultural traits in various geographical areas such as Guatemala , Mexico, Belize, El Salvador and Honduras.
Some of the most known cultures from such geographic regions, like the Kʼiche Maya
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
DOI:10.6814/NCCU202100255 3
(Guatemalan Highlands), Mixtec Maya (Southern district of Toledo Belize) and the Zapotec (Southern state of Oaxaca Mexico), shared cultural traits, which included architectural features, food, dress and a 260-day calendar. Thus, demonstrating a major connection between indigenous individuals. However, there were differences in the qualities of life and other cultural differences that made the Mesoamerica cultures lack homogeneity. For instance, there was no single
language for the people of the region. The differences generated incredible diversity of people and languages resulting in other levels of unfamiliarity in even deities.
Although the Mesoamerica societies show differences in culture across different indigenous groups, single groups that are culturally related have different situations as their regions differ.
Thus, indigenous groups in different countries have different conditions in regard to human rights facilitated by incidences of historical elements including subordination for the non-indigenous groups. For instance, the Mayas non-indigenous group that is found in Guatemala,
Mexico, and Belize in the era of civilization, face different situations specifically regarding their rights as a human being due to the subjectivity of their indigenous culture to the Spanish colonial rule (Weaver, 1993). Generally, the existing Mesoamerican cultural heritage, especially for the indigenous groups within the region, can be identified by the existence of language used and cultural practices.
A report says that the Maya civilization is not only known as the most dominant indigenous group in the region but also considered as the only indigenous group in the Mesoamerica that is not significantly scattered within the population (History.com, 2009). Therefore, making them concentrated in a single central geographical block in Guatemala, Mexico and Belize. As a matter of fact, the concentration has, for decades, acted as a source of security for the Mayan societies compared to other Mesoamerican indigenous groups. This has significantly contributed
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
4
to the existence of the Maya in the current community with different issues to overcome in changing civilizations.
In Table 1 below, illustrates the different human rights of all three countries. The
indigenous human rights are depicted by various factors. These factors include the right to hold land, the right to have customary law, right to vote for political party, right to be free from arbitrary arrest, level of bilingualism, access to health and the right to be free from
discrimination is respected. These different factors constitute the human right conditions in Belize, Mexico and Guatemala. Hence the check mark indicates that the right is present, the x mark indicates that the right is not present and the triangle indicates that the right is present but not respected. Therefore, the goal of this table is to depict the different human right conditions in these Mesoamerican Countries.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
5 Table 1: Comparison of Indigenous land, political and civil rights
Title Belize Guatemala Mexico
Right to Land, Territories and Natural Resources is
respected ✓1 ▲2 ✓3
Right to have Customary Law ✓4 ✗5 ✓6
Right to Vote for Political Party ✓7 ✓8 ✓9
Right to be Free from Arbitrary Arrest is respected ✓10 ▲11 ▲12
Right to Bilingualism (all levels) ✓ ✓13
(Secondary Level)
✓14
(Secondary Level)
Relatively High Access to Health ✓15 ✗16 ✓17
Right to be free from racial discrimination is respected ✓18 ▲19 ✓20
1 The rights to property is affirmed in section 3 (d) and 17 (p.8 & 19) of the Belize Constitution, 21st September 1981, as amended to 2011:
https://www.refworld.org/docid/3ae6b57f4.html (Accessed June 5th, 2020)
2 Article 39 and 67 of the 1985 Guatemalan constitution (reformed in November 1993) presented private property as a fundamental right to all citizens. Furthermore section 67 (p.13), referenced special protection by the state of indigenous land: https://www.acnur.org/fileadmin/Documentos/BDL/2001/0134.pdf (Accessed June 5th, 2020) See also Guatemala Ratifies the International Labor Organization 169 in 1996 which requires the government to respect land rights:
https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_008061/lang--
en/index.htm#:~:text=Guatemala%20Ratifies%20Convention%20Guaranteeing%20Indigenous%20Rights,-ILO%2F96%2F20&text=169%2C%201989).,the%20country's%20majority%20Mayan%20population.&text=It%20also%20requires%20governments%20to,of%20trib al%20and%20indigenous%20peoples (Accessed June 5th, 2020)
3 Article 2 (section V and VI, p. 4) of the February 5, 1917 Mexico’s Constitution with significant amendments to indigenous rights in 1992 and 2001 (See Global Americans, 2017) states that indigenous people/communities are entitled to maintain and improve their habitat and preserve the integrity of their lands:
https://www.constituteproject.org/constitution/Mexico_2015.pdf?lang=en (Accessed June 25th, 2020)
‧
to 2011 which statesthata sthe rightto arbitrary search 019Belize’s ScorecardHumanstatesthat an individual shouldGuatemala_1993.pdfHuman RightReportsand ,2020)from unjustifiable restraint le16onDecember 10,2007inal investigation. Theappearance:0) (p.5) Numerous Reports of ans,2017)whichisthe
4 The Maya Customary law is now part of Belize common law. The Mayas assertion to ownership of ancestral land in compliance with that they have their own form of autonomy. Furthermore, section 16 (p. 17 &18) subsection (1) (3) (4c) of the Belize’s Constitution, 21 s to 2011 indicates that customary law is present but the law should not be discriminatory of itself or in its effects:
https://www.constituteproject.org/constitution/Belize_2011.pdf?lang=en (Accessed June 20th, 2020).
5 The right to indigenous customs, traditions and social organizing are affirmed in Article 66 (p.24) of the Guatemala’s Constitution 198 https://www.constituteproject.org/constitution/Guatemala_1993.pdf (Accessed June 5th, 2020) However, this does not include autonom
1999 reform was rejected, the rights of indigenous people to exercise their own form of law and authority is unrecognized (See Rachel S Indigenous rights in Guatemala, 2007)
6 Article 2 (section A, p. 3) of the February 5, 1917 Mexico’s Constitution with significant amendments to indigenous rights in 2001 (See states that indigenous people has the right to determination, the right to culture and
self-government:https://www.constituteproject.org/constitution/Mexico_2015.pdf?lang=en(Accessed June 25th, 2020). Also note the signin g Accord in 1996 and the Oaxaca state legislature approved a change in the state constitution to allow the election of municipal authoritie in recognition of the indigenous autonomy movement in 1997.
7The rights to vote is highlighted in Preamble section E (p.7) of the Belize’s Constitution, 21st September 1981, as amended to 2011:
https://www.constituteproject.org/constitution/Belize_2011.pdf?lang=en (Accessed June 20th, 2020)
8 The rights to vote is highlighted in article 136 (p.44) of the Guatemala’s Constitution 1985, as amended to 1993:
https://www.constituteproject.org/constitution/Guatemala_1993.pdf (Accessed June 5th, 2020)
9 Article 35 (section I, p. 43) of the February 5, 1917 Mexico’s Constitution affirms that every citizen has the right to vote and hold publ
https://www.constituteproject.org/constitution/Mexico_2015.pdf?lang=en (Accessed June 25th, 2020) The Mexico law review also reaffirm http://
www.scielo.org.mx/scielo.php?script=sci_arttext&pid=S1870-05782012000100001 (Accessed June 28th, 2020)
10 The rights to be free from arbitrary arrest is stated in section 14 (p.17) of the Belize’s Constitution, 21st September 1981, as amended person should not be subjected to unlawful or arbitrary interference and the private life should be respected. Section 9 (p. 9) also highlight or entry: https://www.constituteproject.org/constitution/Belize_2011.pdf?lang=en (Accessed June 20th, 2020)The CJPME Foundation 2 Rights report stipulates that arbitrary arrest is respected.
11 The rights to be free from arbitrary arrest is stated in article 6 (p.13) of the Guatemala’s Constitution, 1985, as amended to 1993 which not be detained or arrested unless a crime or offense is caused in accordance with the law: https://www.constituteproject.org/constitution/
(Accessed June 5th, 2020) . However, numerous Reports of arbitrary arrest is assented in CJPME Foundation: Guatemala’s Scorecard 2016 the 2013 Country Report on Human Rights Practices, section (d): https://www.refworld.org/docid/53284ad514.html (Accessed June 5th
12 Article 16 (p. 17 & 18) of the February 5, 1917 Mexico’s Constitution affirms that each citizen has the right to privacy and protection https://www.constituteproject.org/constitution/Mexico_2015.pdf?lang=en (Accessed June 25th, 2020)Notably, reform was made to artic which included the figure of “arraigo” that entails a preventative measure to assure the availability of offenders during pre and post crim
“arraigo” reform was unconstitutional and protects law enforcement from being investigated from allegations of torture and arbitrary di s https://tbinternet.ohchr.org/
Treaties/CAT/Shared%20Documents/MEX/INT_CAT_NGO_MEX_12965_E.pdf (Accessed June 25th, 202 arbitrary arrest is stated in CJPME Foundation 2016 Mexico’s Scorecard Human Right reports.
13 Article 76 (p. 26) of the 1985 Guatemala’s Constitution with significant reforms to indigenous education in 1991 (See Global Americ National Education Law that stipulates importance of bilingual education in accordance with Guatemala multiethnic society:
https://www.constituteproject.org/constitution/Guatemala_1993.pdf (Accessed June 5th, 2020)
‧
eGlobalAmericans,2017)Moreover,2010reformpdf?lang=en(Accessedystem for healthcare on the
1993 which statescitizensala assented thataccess
th,2020)statesthatindigenouspeoplet each citizen has the right torotectionreformwas calleditutions:ocial%20security%20institutio)asamended to 2011.Thisd/3ae6b57f4.html(Accessed
edom and equality: at indigenous peoplewill uatemala’sScorecard 2016.lobalAmericans,2017)statesMexico_2015.pdf?lang=enion policiesforindigenousport assentedthat
14 Article 2B section II (p. 5) of the February 5, 1917 Mexico’s Constitution with significant reforms to indigenous education in 2010 (Se affirms that bilingual and cross cultural education is established for indigenous people and a scholarship system is set in place for them. assented that teachers in indigenous regions should possess bilingual certifications https://www.constituteproject.org/constitution/Mexico_2015. June 20th, 2020)
15 The rights to healthcare is highlighted in Preamble section B & E (p.7) of the Belize’s Constitution which affirms that there is a just s basis of equality and section E states that there is a basic right to healthcare for citizens, 21st September 1981, as amended to 2011:
https://www.constituteproject.org/constitution/Belize_2011.pdf?lang=en (Accessed June 20th, 2020)
16 The rights to healthcare and social security is highlighted in section 7, article 93 of the Guatemala’s Constitution 1985, as amended to enjoyment of health is a fundamental right without discrimination. Pan American Health Organization: A Country’s Report 2015: Guatem indicators to health for the indigenous population is primarily low:
https://www.paho.org/salud-en-las-americas-2017/?page_id=127#:~:text=It%20covers%2070%25%20of%20the,access%20to%20private%20health%20insurance (Accessed June 5
17 Article 2B section III (p. 5) of the February 5, 1917 Mexico’s Constitution with significant reforms to the health care system in 2003
has effective access to health services by increasing the coverage of national health services and Article 4 of the constitution affirms tha health https://
www.constituteproject.org/constitution/Mexico_2015.pdf?lang=en (Accessed June 20th, 2020) The 2003 Social Health P “Seguro Popular” program which was design to provide health services to individuals that are not affiliated with any social security inst https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5829015/
#:~:text=In%20Mexico%2C%20the%20Seguro%20Popular,with%20any%20s n.&text=As%20mentioned%20earlier%2C%20the%20Seguro,was%20formally%
20created%20in%202003 (Accessed June 20th, 2020
18 The rights to racial discrimination is affirmed in section 16 and subsection (3) (p.18) of the Belize’s Constitution, 21st September 1981, sections highlights that no person shall be treated in a discriminatory manner by any person or authority: https://www.refworld.org/doci June 5h, 2020) The CJPME Foundation 2019 Belize’s Scorecard Human Rights report assented that discrimination is respected.
19 Article 3 & 4(p. 12) of the of the Guatemala’s Constitution 1985, as amended to 1993 affirms that each citizen has the right to life, fre https://
www.constituteproject.org/constitution/Guatemala_1993.pdf (Accessed June 5th, 2020) Furthermore in 1997, ILO 169 affirms th enjoy human rights and be free from discrimination. However, numerous Reports of discrimination is assented in CJPME Foundation: G
20 Article 1 (p. 3) of the February 5, 1917 Mexico’s Constitution with significant reforms to protection of discrimination in 2003 (See G that equality amongst citizens are encouraged and discrimination of any form is prohibited https://www.constituteproject.org/constitution/
(Accessed June 25th, 2020) 2003 reform entails the approval of the federal law to prevent and eliminate discrimination which creates act people. This law was published and approved in June 11, 2003. Also the CJPME Foundation 2016 Mexico’s Scorecard Human Rights re discrimination is respected.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
8
Interestingly in table 1 above, the Mayas who are found in all three countries face different land, political, and civil rights. This can be anticipated by many factors that can be traced to the colonial period. According to Wiegand (2005) during the colonial period, while the Spanish were claiming the Maya region, regions such as Belize were neglected because the colonial rule failed to suppress the Maya population and the Spanish crown declined to supply the large size of armed forces needed to contest the strong British fleet who needed to safeguard their settlements and logging investment in Belize. Therefore, Mesoamerican countries have a variation on the colonial influence that contributed to the real difference specifically on issues concerning land, political, and civil rights. At the same time, the Spanish colonial power never accounted for the future economic value of Belize; as a result, the occupants of significant portions of southern Belizean lands got the opportunity to maintain their lands which is depicted as a check mark in Table 1. Additionally, customary land management systems were also maintained. As such, Mayan communities in Belize and Mexico were less suppressed when compared to those in Guatemala because of the economic value that the country was perceived to have.
On the other hand, the attempt by the colonial rule to change the Maya cultural systems, which was hugely connected with the practice of milpa cultivation, significantly influenced the variation of rights in different countries. For instance, the loss of cultural traditions associated with the milpa eroded the cultural system that protected land rights (Jones, 2011). Therefore, such an element of undermining the cultural system weaken the Maya communities in countries like Guatemala, making it challenging to create a productive and successful resistance and thus making it difficult to protect their rights as an indigenous community. Hence land and customary rights are depicted as a triangle symbol which indicates that the law is present but not enforced.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
DOI:10.6814/NCCU202100255 9
However, the Maya communities resisted the British colonial government from logging in the Belizean region reserving community lands. Additionally, Guatemala court’s misplacement of lawful information related to title deeds made it difficult for the Maya communities in the country to prove legal ownership of the land (Jones, 2011). As a result, land consolidation took place, benefiting the landholding elites as well as companies.
Another element that has significantly contributed to the variation of rights for the Maya indigenous groups in the Mesoamerican region is the type of government and constitution that different countries have experienced over time. For instance, the Constitution of Guatemala has not institutionalized provisions to cater for other indigenous communities’ specific rights when compared to constitutionalized institutional indigenous rights in Mexico. According to Jones (2011), the Guatemalan and the Belizean Government seem not to prioritize the need of indigenous communities as a result of giving room for the elite and other elite associated societies, including the foreigners to have their rights protected compared to other groups in the country.