by Domenico Giannino, Visiting Fellow, Institute of Latin American Studies
The Mapuche indigenous community is the largest ethnic group in Chile, occupying a vast territory in south-central Chile and southwestern Argentina, including parts of present-day Patagonia. The term Mapuche is used to refer to various indigenous groups with a common socio-economic, religious and linguistic background. They remained substantially independent during the colonial period and, then, in the second part of the nineteenth century their territory was incorporated by independent states of Chile and Argentina. From that moment onwards, the Mapuche nation remained artificially divided by the Chilean-Argentinian boundary.
Since the 1990s, the Mapuche have engaged in a long conflict with the Chilean and – to a lesser degree – Argentinian governments for the recognition of their rights and the recovery of their traditional lands. In 2014 the Inter-American Court of Human Rights condemned Chile for violating the principle of legality (article 9 of the American Convention on Human Rights); the right to the presumption of innocence and the right of the defence to examine witness (article 8); the principle of equality and non-discrimination and the right to the equal protection of the law (article 24); the right to personal liberty (article 7); the right to freedom of thought and expression (article 13); the right to participation in government (article 23); the right to the protection of the family (article 17). This landmark case brought by eight Mapuche constitutes an important condemnation of the criminalisation of social protest in democratic regimes in Latin America.
The situation of the ‘Argentinian’ Mapuche is no better than its Chilean counterpart. In fact, in 2017 Amnesty International reported acts of violence and repression by the Argentinian security forces against the Pu Lof community of the Mapuches, who as part of their protest were occupying their traditional land in the department of Cushamen, near the city of Esquel, in Chubut province.
The story of the Pu Lof community is illustrative of the approach of the Argentine state has taken towards the Mapuche indigenous people. Indeed, from 1878 to 1885 Argentine conducted a military campaign to assert its power over the Mapuche in Patagonia, whose traditional land was awarded to the London-based Argentine Southern Land Company Ltd. In 1982 the company – after being nationalised – became the Compañía de Tierras del Sud Argentino, which in 1991 was sold, in the context of a massive privatisation of state properties, to Edizone Holding International, owned by the Italian Benetton family.
In the last twenty years the Italian textile group – well known for its worldwide human rights marketing campaigns – have engaged in a constant struggle to protect its private property of 900000 hectares in Patagonia land against the claims of Mapuche ancestral territory rights.
The worst episode of this David versus Goliath battle – in which Benetton claims to be only unwittingly involved – is undoubtedly the mysterious death of Santiago Maldonado, who disappeared during a raid by the Argentine military border police to lift a partial roadblock outside the Pu Lof en Resistencia, a Mapuche lof in the Benetton-owned estancia Leleque.
The last chapter of the Mapuche versus Benetton saga took place few months ago, when the lof Kurache occupied the cuadro El Platero.
The story of the ‘Argentine’ Mapuche story is interesting from both a political and legal standpoint.
Politically, this story is a patent example of the Latin-American development models and of how they have been often implemented to serve the interests of private subjects rather than the public good, according to a ‘well-oiled’ mechanism of accumulation by dispossession. This process of commodification of traditional land and privatisation of almost every public asset – which started in Argentina in the 1990s under the auspices of the International Monetary Fund – have endangered the environment and the rights of the most disadvantaged communities.
Legally, it is important to highlight the dichotomy between the international, national and provincial legal protection of indigenous peoples’ land rights and the reality of government human rights abuse.
The Argentine Constitution (article 75, section 17) widely protects the rights of indigenous people, recognising their ethnic and cultural pre-existence and guaranteeing the respect for the identity and the right to bilingual and intercultural education. Furthermore, it recognises the legal capacity of indigenous communities and – especially important for our angle of analysis – the community possession and ownership of the lands they traditionally occupy, which cannot be sold, transmitted or subject to liens or attachments. Similar protection measures are contained in most provincial constitutions.
The constitutional protection of indigenous people land rights is further developed by the law 26.160/2006, which restricts the eviction of registered indigenous groups. Moreover, the law 24.071/1992 has approved the Indigenous and Tribal Peoples Convention (n. 169/1989) of the International Labour Organisation, whose article 14 recognises the rights of ownership and possession of the indigenous and tribal peoples to lands which they traditionally occupy.
Finally, the Inter-American Court of Human Rights – since the 2001 landmark case of Mayagna (Sumo) Awas Tingni v. Nicaragua – has recognised the right of indigenous groups to communal property of traditional lands, which constitute the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. Article 21 of the American Convention on Human Rights is creatively reinterpreted in order to frame a concept of ownership which is not centred on private property and economic value, but rather on the community as a whole and its all-encompassing relationship to traditional lands. Both the American Convention on Human Rights and the case-law of the Inter-American Court are, under the conventionality control doctrine, a source of Argentine law, which the national courts are called upon to enforce, even against national Constitutions.
Despite this legal framework of protection, the land rights of indigenous communities are substantially impaired. In fact, James Anaya – the UN Special Rapporteur on the rights of Indigenous Peoples – highlighted in 2012 the existence of a significant gap between the established regulatory framework on indigenous issues and its actual implementation. More recently, Human Rights Watch has underlined that Argentina has failed to fully implement existing laws to protect indigenous peoples’ rights.