ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

120 OTHERNESS IN LATIN AMERICA:
LEGAL PLURALISM
AND INDIGENOUS LAW
This panel deals with the relationship between indigenous
law and domestic legal systems in Latin America
context, where the concept of “otherness” must
be reshaped in order to include legal orders with a
completely different social and even cosmological
basis. It aims to foster the debate on legal pluralism,
focusing on both the international and the national
protection and regulation of indigenous people. After
the methodological introductory talk (by S. Ragone),
the first speaker (M. Góngora-Mera) will analyze the
implementation of the ILO Convention 169 concerning
Indigenous and Tribal Peoples in a comparative
perspective. The following panelists will focus on the
role of the Inter-American System of Human Rights:
F. Piovesan will assess the positive outcomes at the
national level of the Inter-American jurisprudence and
O. Parra will analyze critically the decisions concerning
remedies for indigenous people. After the presentations,
X. Soley will intervene as a discussant.
Participants
Name of Chair
Room
Sabrina Ragone
Manuel Eduardo Góngora-Mera
Flávia Cristina Piovesan
Laura Ciarico
Óscar Parra-Vera
Sabrina Ragone and
Ximena Soley Echeverría
BE2 E34
Sabrina Ragone: Introduction and Methodological
Framework: Latin American Legal Pluralism
This introductory speech will highlight the premise,
the framework and the objectives of the panel dedicated
to “Otherness in Latin America: Legal Pluralism
and Indigenous Law”. The starting point is that Latin
American legal systems have historically been characterized
by legal pluralism, combining indigenous
law and state law. Although this is a long lasting issue,
only during the last decades the problem has been
faced more consistently both at the national and the
international level. In this context, the panel offers an
innovative point of view on the concept of “otherness”,
since it must be reshaped in order to take into account
legal orders with a completely different social and
even cosmological basis.
Manuel Eduardo Góngora-Mera: Alterity by Law:
A Critical Evaluation of the Implementation of
ILO Convention 169 in Latin America
Almost all Latin American countries have ratified
ILO Convention 169 concerning Indigenous and Tribal
Peoples (with different degrees of reception in the
constitutional jurisprudence), and the Inter-American
Court of Human Rights has integrated ILO 169 in its
case law. This has created a kind of regional constitutional
convergence on the basis of ILO 169 standards,
which represents a unique case worldwide. Nevertheless,
subtle differences in domestic interpretation
(in particular in defining the subjects covered by the
convention) generate huge differences in results. By
analyzing some selected Latin American countries,
the aim of the lecture is exploring how implementation
varies according to the domestic legal or judicial
definition of the subjects covered by the treaty and
what is its impact in the reshaping of indigenous and
tribal identities.
Flávia Cristina Piovesan: The impact of the Inter-
American Jurisprudence in raising the
level of protection of indigenous people at the
domestic level
This contribution has as a methodological basis
the idea that international human rights order plays
three important roles: a) establishes human rights
standards, b) compensates national deficits, and c) foments
a new dynamic of power involving social actors.
The presentation will focus on the “Inter-American
Corpus Juris” concerning the rights of the indigenous
peoples identifying the legacy of the Inter-American jurisprudence
in the field based on a typology of key topics
from the human rights approach such as the right
to land from a collective perspective right of cultural
identity, right to participate in decisions affecting their
destiny (right to voice).Inspired by the “Inter-American
Corpus Juris” concerning the rights of the indigenous
peoples, the talk will deal with its impact in raising the
level of protection of the rights of indigenous peoples
at the domestic level, in order to compensate national
deficits and foment a new dynamic of power involving
social actors.
Laura Ciarico: Legal reasoning in the jurisprudence
of the Inter-American Court of Human
Rights on the rights of indigenous people
The Inter-American Court of Human Rights (I/A
Court) is well known because of its judgments in matters
of rights of indigenous people. This Court has been
cautious in administering the test of proportionality
in matters of the right of indigenous people in two
relevant aspects. First the proportionality test is not
the only or the dominant one. Second both methods
are mediated by the method of comparison of cases.
The I/A Court thus sees itself in the context of a convergence
of constitutional practices where there are
debates on the conflict of rights and certain doctrines
that direct (although do not definitively determine) the
weighing of the rights in conflict also in matters where
diversity is in the middle of the controversy about the
content and scope of the rights.
Concurring panels 169