The Moderating Influence of International Courts on Social Movements: Evidence from the IVF Case Against Costa Rica

Feminists and religious conservatives across the globe have increasingly turned to courts in their battles over abortion. Yet while a significant literature analyzes legal mobilization on abortion issues, it tends to focus predominantly on domestic scenarios. In this article we consider the effects of this contentious engagement of pro-choice and anti-abortion movements in international human rights fora, asking what happens to social movement claims when they reach international human rights courts. Through detailed description of a single case we explore the nature of contentious engagement in the international legal arena and its relation to social movement claims. The selected case study is Gretel Artavia Murillo et al. v. Costa Rica, decided by the Inter-American Court of Human Rights in 2012 but with ongoing repercussions for abortion rights, given its authoritative interpretation of embryonic right to life. Through our analysis of Artavia Murillo, we show how legal mobilization before international human rights courts moderates social movement claims within the legal arena, as rivals respond to each other and argue within the frame of courts’ norms and language.

Download PDFHealth and Human Rights

(2017) with Julieta Lemaitre, “The Moderating Influence of International Courts on Social Movements: Evidence from the IVF Case Against Costa Rica”, Health and Human Rights, Vol.19 (1): 149-160.

Women and Legal Pluralism: Lessons from Indigenous Governance Systems in the Andes

The shift towards legally plural multicultural and pluri-national citizenship regimes in the Andes formally recognised indigenous peoples’ community-based governance systems. These tend to emphasise participation, deliberation and service to the collective, but are often criticised for discriminating against women. We argue that recent constitutional reforms and legislation combining recognition of collective rights claims with institutional guarantees for gender equality have in fact amplified indigenous women’s different strategies of ‘negotiating with patriarchy’, allowing them to further the transformation of their organisations and ‘custom’. Such strategies are necessary because of the intersections of race, class and gendered exclusions that indigenous women experience, and possible because of the diverse and dynamic nature of community governance systems. Despite systemic and structural constraints on the guarantee of indigenous peoples’ rights, the actions of organised indigenous women over the last two decades point to new ways of imagining more plural, less patriarchal forms of citizenship.

Journal of Latin American Studies

(2017) with Anna Barrera, “Women and Legal Pluralism: Lessons from Indigenous Governance Systems in the Andes”, Journal of Latin AmericanStudies. DOI: https://doi.org/10.1017/S0022216X16002273 Published online: 16 de enero 2017. ISSN: 0022-216X (printed), 1469-767X (electronic)

Legalizing indigenous self-determination: autonomy and buen vivir/ vivir bien in Latin America

Focusing on recent experiences in Mexico and Ecuador, this introductory essay to a special dossier in the Journal of Latin American and Caribbean Anthropology explores key aspects of the complexities involved in efforts to legalize indigenous rights and claims. We map out the origins of this turn to legalization and argue that this multiple and de-centered—or legally plural—process has today entered a new phase associated with the exhaustion of the neoliberal multicultural model that dominated much of the region in the 1990s and 2000s.

Journal of Latin American and Caribbean Anthropology 

(2017) with Anna Barrera, “Legalizing indigenous self-determination: autonomy and buen vivir/ vivir bien in Latin America”, Journal of Latin American and Caribbean Anthropology (JLACA). DOI: 10.1111/jlca.12233. Publicado en línea: 16 de enero 2017. ISSN (electronic): 1935-4940

Legal Pluralism and Indigenous Women’s Rights in Mexico: The Ambiguities of Recognition

This article explores the effects of the ambiguous recognition of indigenous or “customary” law in Mexico on the struggle of indigenous women to ensure their rights are respected. After outlining the history of legal changes to recognize indigenous law, I analyze three paradigmatic cases: Eufrosina Cruz Mendoza and rights to political participation; Inés Fernández Ortega and Valentina Cantú and rights to physical security; and Nestora Salgado García and the criminalization of indigenous autonomies in a context of the spread of organized crime, revealing the Mexican government’s inconsistent approaches to recognizing indigenous peoples and women’s rights.

Download PDF | NYU Full Access Journal

(2016) “Legal Pluralism and Indigenous Women’s Rights in Mexico: The Ambiguities of Recognition”, NYU Journal of International Law and Politics. 48 (4): 1125-1150. ISSN‎: ‎0028-7873 (printed); 1930-6237 (electronic)

“Subaltern Cosmopolitan Legalities & the Challenges of Engaged Ethnography”

universitas75 portada.indd

This article considers the challenges of engaged ethnographic research with indigenous peoples’ social movements within shifting fields of interlegality and fragmented sovereignties marked by multiple inequalities, racism, impunity and violence. Drawing on the experience of a collaborative research project on legal pluralism and indigenous women’s access to justice and security, that aims to strengthen subaltern cosmopolitan legalities (Rodríguez-Garavito and Santos, 2005), it discusses a number of issues including: scholarly privilege and ethnographic authority; testimonies, their value, uses and abuses, and; interpreting and writing about inequalities and tensions within the communities and organizations we work with.

Download PDF

Universitas Humanística (2013). Núm. 75: 219-47.

The Challenge of Indigenous Legal Systems: Beyond Paradigms of Recognition

 

This article outlines recent processes of legal “recognition” of indigenous justice systems, identifying the main issues of contention, advances, and challenges. Drawing on examples from Guatemala, Mexico, Ecuador, and Bolivia, it points to some of the innovative ways in which indigenous peoples are strengthening and revitalizing their justice practices, before considering the broader implications of recent developments for politics and law in the region.

Download PDF

“The Challenge of Indigenous Legal Systems: Beyond Paradigms of Recognition”. Brown Journal of World Affairs, Spring/Summer 2012, Vol. XVIII, Issue 11: 103-114.

Promesas y Peligros de la “Coordinación”: Derecho Indígena, Inseguridad y la Búsqueda de Justicia en Guatemala

Since the start of the 1990s, political and legal reforms in “multicultural” or “pluricultural” Latin American states have favored the recognition of legal pluralism and, increasingly, of special jurisdictions for indigenous law. Political debate, legislative proposals and everyday practice has focused on how to “coordinate” official and indigenous justice systems in a way that guarantees fundamental human rights and indigenous peoples’ rights to jurisdictional autonomy. This essay presents a critical review of tendencies towards interlegal “coordination” in Latin America, followed by an ethnographic analysis of the political, social and cultural negotiations involved in a specific experience of interlegal, interethnic coordination which occurred in Santa Cruz del Quiché, Guatemala, in 2006. Instead of concepts of separate or closed forms of law and identity which underpin contemporary paradigms of coordination, it is proposed here that intercultural negotiations about the nature of law, and through law, produce forms of justice that challenge existing ethnic frontiers. These “legal hybrids” (Santos 2006) are a consequence of the demands of organized indigenous peoples in favour of their rights and of their efforts to strengthen their own forms of government and justice. However, they are also a product of the competition between different imaginaries of justice and the search for security in a highly violent society marked by the neoliberal global capitalism of the twenty first century.

 Download PDF | Revista Argentina de Teoría Jurídica 

(2011) “Promesas y peligros de la “coordinación”: Derecho indígena, inseguridad y la búsqueda de justicia en Guatemala,” Revista Argentina de Teoría Jurídica, Volumen 12: 1-46.

Indigenous Women’s Access to Justice in Latin America

Indigenous peoples in Latin America suffer systematic lack of access to justice in state legal systems Structural exclusion and discrimination particularly affect indigenous women. In this article we analyze the challenges and benefits for indigenous women when they try to access justice in indigenous legal systems. We emphasize the need to consider normative frameworks, legal awareness, access to appropriate justice forums and the achievement of satisfactory remedies. While the reasons for lack of access to justice or the barriers involved in specific cases depend on the context, we identify a number of common contributing factors: poverty, discrimination and racism, violence exercised by state and non-state actors and lack of women’s participation in public life. We suggest that the gradual recognition of legal pluralism, as well as the incorporation of international standards on women’s rights within statutory law, is shaping prospects for improved access to justice for indigenous women across the continent. However, we conclude that their demands for gender equality and more dignified lives can only be met when indigenous peoples collectives rights are guaranteed and respected.

(2011) with María Teresa Sierra, “Indigenous Women’s Access to Justice in Latin America,” Journal for Human Rights/ Menschenrechte in Lateinamerika Vol. 5 (2): 36-51.

Contested Sovereignties: Indigenous Law, Violence & State Effects in Postwar Guatemala

This article analyzes the efforts of organized indigenous peoples to exercise their own forms of law within the context of social violence and impunity that characterizes postwar Guatemala. Through an ethnographic exploration of alternative justice practices in the region of Santa Cruz del Quiché, it aims to contribute to the “anthropology of the state”. Specifically, the article describes some of the different phenomena or social forces that compete to exercise sovereignty in the region and reflects on what these reveal about the nature of the contemporary state in Guatemala.

Download PDF | Critique of Anthropology

(2011) “Contested Sovereignties: Indigenous Law, Violence and State Effects in Postwar Guatemala”, Critique of Anthropology, Vol.31 (3): 161-84.

Building Mayan Authority & Autonomy: The “Recovery” of Indigenous Law in Post-Peace Guatemala

Across Latin America, debates and practice around indigenous law provide a window on shifting relations between indigenous movements, states, and international actors. In Guatemala, the practice of indigenous law is a reflection of cultural difference, a response to past and present violence, and a resource for a population denied access to justice. In the postwar period, indigenous law has become a central element of contemporary Mayan identity politics. Together with the policy shift toward state-endorsed multiculturalism, this has meant it has become a highly contested and politicized terrain. This article examines attempts by indigenous activists to ‘‘recuperate’’ and strengthen indigenous law – or what is now termed ‘‘Mayan law’’ (derecho Maya) – in Santa Cruz del Quiche´, Guatemala. Analyzing the tensions between local demands, the Mayan movement, international NGOs and intergovernmental bodies, and the Guatemalan state, it reflects on what they reveal about the limits and contradictions of the multicultural model of justice promoted since the end of the armed conflict.

Download PDF | Studies in Law, Politics, and Society / Emerald

(2011) “Building Mayan Authority and Autonomy: The “Recovery” of Indigenous Law in Post-peace Guatemala”, Studies in Law, Politics, and Society Vol. 55: 25-57. ISSN: 1059-4337

Indigenous Women’s Access to Justice in Latin America

indigenouswomensIndigenous peoples in Latin America suffer systematic lack of access to justice in state legal systems Structural exclusion and discrimination particularly affect indigenous women. In this article we analyze the challenges and benefits for indigenous women when they try to access justice in indigenous legal systems. We emphasize the need to consider normative frameworks, legal awareness, access to appropriate justice forums and the achievement of satisfactory remedies. While the reasons for lack of access to justice or the barriers involved in specific cases depend on the context, we identify a number of common contributing factors: poverty, discrimination and racism, violence exercised by state and non-state actors and lack of women’s participation in public life. We suggest that the gradual recognition of legal pluralism, as well as the incorporation of international standards on women’s rights within statutory law, is shaping prospects for improved access to justice for indigenous women across the continent. However, we conclude that their demands for gender equality and more dignified lives can only be met when indigenous peoples collectives rights are guaranteed and respected.

Download PDF | CMI Chr. Michelsen Institute

(2011) con María Teresa Sierra, “Acceso a la justicia para las mujeres indígenas en América Latina,” CMI working paper, Chr. Michelsen Institute, Bergen. ISSN: 0804-3639

‘Emancipation’ or ‘Regulation’ ? Law, Globalization & Indigenous Peoples’ Rights in Post-War Guatemala

During the last two decades processes of legal globalization have led to the increasing codification of the collective rights of indigenous peoples. In Latin America this shift towards ‘codifying culture’ began with a series of constitutional reforms during the 1990s which recognized a series of rights of indigenous people and the ratification by many states of International Labour Organisation’s Convention 169 on the rights of indigenous and tribal peoples. For many, this regional ‘neoliberal multicultural’ turn (Hale 2002; 2006) was not about recognizing rights as such, but rather heralded a series of governmental policies signalling limited acceptance of cultural diversity which ultimately facilitated transnational forms of capitalist accumulation.

The limited gains of state-endorsed multiculturalism and the threats posed to indigenous livelihoods by the current commodities boom have encouraged a growing number of counter-hegemonic legal engagements or legal globalization ‘from below’ which resort to ever more transnationalized legal pluralities (Santos & Rodríguez Garavito 2005). Indigenous people across Latin America continue to judicialize their protests, appealing to legal entitlements – including both ‘hard law’ (treaty and constitutional law) and ‘soft law’ (such as the internal norms of multilateral development institutions) – in order to claim greater autonomy and protest against the effects of dominant patterns of economic development. Using Boaventura de Sousa Santos´s heuristic device of the regulatory and emancipatory dimensions of law (Santos 1998; 2002), in this article I examine the effects of legal globalization and the appropriation of legal instruments and discourses by indigenous people in post-war Guatemala. Specifically, I highlight the distinct legal frameworks, and conflicting notions of property, development, citizenship and democratic participation and voice at play in recent mobilizations against mining projects. The conclusions reflect on the possible effects of judicializing indigenous peoples´ political demands.

Download PDF | Taylor & Francis Online

(2011) “’Emancipation’ or ‘regulation’? Law, globalization and indigenous peoples’ rights in post-war Guatemala”, Economy and Society, Vol.40 (2): 279-305. ISSN: 0308-5147

Género, Derecho y Cosmovisión Maya en Guatemala

This article explores the contributions made by women’s organizations in Guatemala, regarding their reflections on identity, as well as on collective and gender rights; it also analyzes the way in which these reflections help to revitalize and strengthen indigenous law. The essay’s prime objective is to establish links between Mayan women’s theories about gender and identity, and the emerging practices for revitalizing indigenous law, which are guided by the efforts of Mayan activists to rescue their culture’s values and principles.

Download PDF | Versión Impresa en scielo.org.mx

(2009) with Morna Macleod, “Género, Derecho y Cosmovisión Maya en Guatemala,” Desacatos, Vol.31: 51-72. ISSN: 1405-9274

Cruces de Fronteras, Identidades Indígenas, Género y Justicia en las Américas

This article analyzes and reflects on the deep transformations currently suffered by indigenous communities under the neoliberal globalization regime, as well as the way in which indigenous people articulate as subjects of law under this context in different regions of Mexico, Guatemala and the United States (including the transnational experiences of indigenous migrants between these countries).

Download PDF

(2009), with Shannon Speed, Maylei Blackwell, Aída Hernández, Teresa Sierra, Morna Macleod, Renya Ramírez and Juan Herrera, “Remapping Gender, Justice, and Rights in the Indigenous Americas: Towards a Comparative Analysis and Collaborative Methodology,” Journal of Latin American Anthropology.Vol.14 (2): 300-331.

Remapping Gender, Justice, and Rights in the Indigenous Americas: Towards a Comparative Analysis and Collaborative Methodology

Journal LA and Caribean AnthroIn this essay, we describe some of the collective reflections and analyses that emerged as a result of a comparative project initiated with a UC MEXUS-CONACYT Collaborative Grant, awarded funds to two research teams, one in the United States and one in Mexico. The aim of the project was to develop a common theoretical framework for understanding the complex relationship between movements for indigenous rights, state reform, and juridical structures. A principal goal of this framework was to allow for a comparison of the experience of indigenous groups in regions of Mexico, Guatemala, and the United States, including transnational indigenous migrants between these countries. We focused on the ways in which indigenous people are struggling for political and cultural rights, local autonomy, and effective justice practices in the context of changes being wrought by processes of economic, political, legal, and cultural globalization. We were particularly interested in analyzing how men and women might be living these struggles differently and how gender norms and dynamics might be shifting as a result of organizational experiences or migratory processes.

The Journal of Latin American & Caribbean Anthropology 

(2009) with Shannon Speed, Maylei Blackwell, Aída Hernández, Teresa Sierra, Morna Macleod, Renya Ramírez and Juan Herrera, “Remapping Gender, Justice, and Rights in the Indigenous Americas: Towards a Comparative Analysis and Collaborative Methodology,” Journal of Latin American Anthropology, Vol.14 (2): 300-331.

The Judiciary & Indigenous Rights in Guatemala

In Latin America, indigenous peoples constitute a marginalized group that is using the courts, increasingly, as one means by which to pursue and defend its rights. In part, this is a result of the juridification of its collective rights through processes of constitutional reform across the region during the 1980s and 1990s. It is also a consequence of the very limited advances that have been made to date in guaranteeing these rights in practice. The enlarged legal recognition of indigenous autonomy has occurred at the same time as the implementation of economic policies promoting free trade and accelerated natural resource exploitation—policies that affect indigenous communities negatively and disproportionately. This combination of factors has meant that indigenous movements more and more have called on the judiciary in defense of their collective rights, albeit often with limited tangible effects.

Download PDF | Oxford Journals

(2007) “The Judiciary and Indigenous Rights in Guatemala”, International Journal of Constitutional Law, Vol. 5 (2): 211-241.

Globalización Legal y Derechos Indígenas en la Guatemala de Posguerra

This article examines processes of legal globalization and the ways in which these affect indigenous rights in Guatemala. Its chief aim is to analyze the effects of the dynamic between two forms of legal globalization and its impact on the socio-legal field. First, the article examines reforms sponsored by international development agencies in Guatemala that seek to increase access to justice for the indigenous population: globalization “from above”. The second form of legal globalization “from below”, refers to the highly globalized manner in which indigenous law is being re- constituted in Guatemala. The indigenous mayoralties (alcaldías indígenas) and indigenous defenders NGOs are discussed as an example of this tendency, together with a case where the idea of “prior consultation” which appears in ILO Convention 169 was appropriated and reelaborated by local communities in the west of the country in order to oppose proposed mining concessions. The article concludes that the dynamic between legal globalization “from above” (judicial reform) and legal globalization “from below” (appropriation of instruments and rights discourses) is creating, in turn, hybrid le- gal spaces in Guatemala, local and national legal fields where the content, legitimacy and exercise of “law” is highly contested.

Download PDF

(2006) “Globalización legal y derechos indígenas en la Guatemala de posguerra,” Alteridades Vol. 16 (31): 23-37.

Renegociando la ‘Ley y el Orden’: Reforma Judicial y la Respuesta Ciudadana en la Guatemala de Posguerra

Democratization portadaThis article examines reforms aimed at strengthening the rule of law in Guatemala implemented since the signing of the peace accords in December 1996. Despite nearly $200 million in foreign aid to the justice sector, impunity remains the rule, the judicial process is subverted by military and criminal networks, citizen confidence in the judicial system remains low and recourse to non-judicial measures – the “privatisation of justice”- is on the increase. It is argued that the institutionally-focused approach to rule of law reform currently predominating in donor thinking ignores the historical context within which understandings of ‘law’, ‘justice’ and ‘rights’ are shaped. Institutions do matter, but only by understanding the role of law in long-run processes of state formation and the dynamic, inter-subjective nature of legal interactions can we begin to understand the specificities of socio-legal change.

Download PDF | Taylor & Francis Online

(2003), “Renegotiating ‘law and order’: judicial reform and citizen responses in post-war Guatemala”, Democratization, Vol. 10 (4): 137-160.

Paz, Progreso, Justicia y Honradez: Law & Citizenship in Alta Verapaz During the Regime of Jorge Ubico

Prospects for the ‘rule of law’ in the present are shaped by historical experiences of law by elite and non-elite groups in the past. In this article I explore changing conceptions and practices of rights’ and ‘justice’ as expressed in the legal and administrative encounters between indigenous people and state officials during the regime of Jorge Ubico (1931-1944). The extension of the state’s coercive and administrative apparatus to remote rural areas, new legislation and changes in public administration transformed relations between working people, coffee finqueros and the state in Guatemala. This implied new obligations and exactions for Mayans, but also provided them with new opportunities to contest and negotiate their conditions. Indigenous people strategically engaged with the law to contest the terms of their domination by elite actors and to mediate conflicts between themselves. As state ideologies of ‘moral behaviour’ led to increasing regulation of the private sphere, this was particularly important in the case of conflicts over gendered rights and obligations. Although formally excluded from the category of citizens, indigenous people used the official language and discourse of citizenship to further their claims, in turn reshaping Guatemalan nation-state.

Download PDF | Bulletin of Latin American Research

(2000) “Paz, progreso, justicia y honradez: law and citizenship in Alta Verapaz during the regime of Jorge Ubico”, Bulletin of Latin American Research, Vol.19 (3): 283-302.

Elections & Democratization in Honduras Since 1980

Democratization portadaAlthough Central America returned to electoral rule during the 1980s, lack of participation, political violence and militarization meant that democracy remained decidedly limited. This article outlines the particularities of the transition to constitutional government for the case of Honduras, and examines the role of successive electoral processes on prospects for democratic consolidation, focusing on the relationship between electoral processes and the nature of the party system. It is maintained here that whilst the longevity of the bipartisan system has been an important element of stability, the nature of the two dominant parties (Liberal and National) has hindered the consolidation of a more democratic politics. However, the article also argues that successive elections have been the catalyst for limited modernization of the party system and have increased citizenship confidence in the electoral process, and that this ‐together with a gradual reduction in the influence of the military ‐ has strengthened future prospects for deepening democracy. None the less, the article concludes that unless a new relationship is established between political parties and civil society to ensure a more representative and participatory form of politics, democracy will remain limited in Honduras.

Available at Taylor & Francis Online

(1996) “Elections and Democratization in Honduras since 1980,” Democratization, Vol. 3 (2): 17-40.

Honduras: The Politics of Exception & Military Reformism (1972-1978)

14735504_7-2.qxd.goldlabel

The specificities of contemporary Honduran politics are explored by examining both national historical development and the cooption of popular protest by military reformism in the I970s. The dynamics underpinning demobilisation of the popular movement after 1976 are explained with reference to both the agrarian reform implemented by the military and certain features of local political culture, such as patronage and clientelism, which – it is argued – were utilised selectively to coopt a sector of the organised labour movement. Divisions within the popular movement, in part a product of traditions of state-labour relations, were also significant in weakening the popular challenge.

Download PDF | Cambridge Journals

(1995) “Honduras: The Politics of Exception and Military Reformism (1972-1978)”, Journal of Latin American Studies, Vol.27 (1): 99-127.

Scroll To Top