Access to Property for Indigenous People and Peasants

Access to Property for Indigenous People and Peasants

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By Tamer Medina Hoyos

Establishment of Constitutional Minimum Percentages of Access to the Property of Territory and Land for Indigenous and Peasants (reflections for the constituent).

At this time, most of the Economic, Social and Cultural Rights continue to be of "progressive application" and depend on the "maximum effort and resources" of the States and the international community. These criteria come to constitute the limit that the liberal conception of Human Rights places on the States that more than guarantors of Human Rights are guarantors of capitalist reproduction at a global level.

From the law to social frustration.-

As the human person is a global social subject, his life in a situation of dignity depends on the respect of all his rights. Therefore, all human rights are important and their interdependence and indivisibility are a reflection of the integrality of human dignity.

Unfortunately this aspiration collides with reality. Although it is true that Economic, Social and Cultural Rights (ESCR) are recognized in a
general or specific in the national constitutions of the countries, in Covenants, Declarations and other international instruments for the protection of human rights and that, there are advances in the interpretation and legal creation to protect them, to a large extent, they still depend on the setting of content legal minimums (absent) and of the economic and social policies of the States.

With the application of liberal policies, the last twenty years have presented a clear contrast between "what is formally declared and the harsh reality." The promoters of structural and economic reforms are not interested in full employment, fair wages, education, or democratization in access to natural resources that constitute livelihoods. As a consequence, to date, millions of people have suffered and suffer firsthand from the uselessness of the most exalted speeches and learn to distinguish the formal emptiness from the real will for the effective fulfillment of their rights.

Hence, the means of compliance with ESCR in Indo-America and specifically in Bolivia, not only go through what is already in the law, the political capacity of the social movement is also important to include constitutional reforms aimed at providing minimum content and defining the obligations of the States to achieve the redistribution of wealth, in addition to the role of "guarantor" that the social movement can assume with its ability to fight.

The ways of social struggle and laws.-
In our countries there have been quite a few advances regarding the recognition of the rights of indigenous peoples and peasant communities. Laws were reformed and approved in the constitutional and secondary order, as can be verified from three Constitutions of the five countries of the community.
Andean. In the case of Bolivia, it is recognized as "multi-ethnic and multicultural" (Article 1 C.P.E.), it guarantees access to land to the peasant and recognizes and guarantees the right of indigenous peoples to their community lands of origin. (Articles 168,169,170… C.P.E.)

In the same sense but clearer and more specific, Ecuador has a much more progressive constitution in the field of recognition of ESCR, not only is it recognized as pluricultural and multiethnic but also has two chapters dedicated to Economic, Social, Cultural and Collective Rights (articles 30 , 31,32-85….) That together with the agricultural regime (Articles 266,267,268 ..), establishes the right to land of peasant communities, indigenous peoples and Afro-descendants.

Even so, it can be affirmed without fear of mistake that although it is true that a large part of ESCR is proclaimed and recognized (same in Peru and Colombia)
These are subject to the political will of the rulers and groups of political economic power who are only interested in maintaining the conditions of macroeconomic stability at the cost of the sacrifice of ESCR for the majority of the population that is advancing towards accelerated impoverishment. .

The only country of the Andean community that has introduced in its constitution a minimum content for an obligation (in a lukewarm way but that marks a milestone) that can be enforced through the courts (amparo) is Ecuador, when it determines in the second paragraph of the article 46 of its Constitution: "the fiscal allocation for public health will be increased annually by the same percentage as the total current income of the central government budget increases. There will be no budget reductions in this matter." If any government dared to reduce the health budget, it would be an unconstitutional measure and an amparo would immediately proceed that would force the government to replace the affected budget.

On the contrary, in Bolivia, in the case of land, for example, the State recognizes peasants and indigenous peoples the right to land and territory, but these, despite being the majority population, own less than 20% of the lands of lower quality, while large landowners, loggers, ranchers and agro-entrepreneurs own more than 70% of the best land. Paradoxically, peasants, indigenous people and small owners produce 70% (a percentage that is threatened by free export) of the food consumed in the country and large owners 20%, the latter keeping a large amount of idle land for purposes speculative and soft loans. In conclusion, the right is proclaimed but it is not guaranteed by setting a minimum content to the obligation.

Transform the law and transform the structures.
At this time, most of the Economic, Social and Cultural Rights continue to be of "progressive application" and depend on the "maximum of effort
and resources "of the States and the international community. These criteria come to constitute the limit that the liberal conception of Human Rights places on the States that more than guarantors of Human Rights are guarantors of capitalist reproduction on a global level.

With capitalist expansion (globalization), it is the National States themselves that cause job insecurity, high unemployment rates, liberation of the peasant workforce, and the provision and facilitation of access to renewable and non-renewable natural resources for Transnational Corporations above the real interests of the population in general and of peasants and indigenous people in particular, leaving a deliberate void that in most of the times leaves the States without obligations. What is the maximum effort? How can it be measured? How can you establish the minimum parameters to demand its enforceability?

In this context, something that few leaders touch when it comes to the issue of enforceability and compliance with ESCR are public policies and laws that regulate access and appropriation of natural resources, on which the survival of indigenous and peasant peoples depends. . The issue of the unjust dispossession suffered by these peoples is not discussed or recognized in these circles, who today in countries like Bolivia, being four million, only own less than 20% of the worst lands, unlike whites and mestizos (minority ) who own more than 70% of the land suitable for agricultural, livestock, forestry, etc.

If this injustice continues, no matter how much efforts aimed at education, health, drinking water, basic sanitation etc. are established, the situation of a large part of the rural Bolivian population of rural origin that sits on the margins of cities (but in most cases it does not break its link with the countryside) it will continue to lack the most elementary means for subsistence; feeding.

In recent times, compliance with ESCR has been related to the need for economic growth (liberal vision), but it is not deliberately considered that poverty (violation of ESCR) in most cases is a problem of poor distribution of wealth and unfair appropriation of natural and economic resources by power elites who instrumentalize the States according to their interests.

In this context, the fight for ESC rights does not end in obtaining "unobjectionable" instruments at the international legal level or progressive constitutions at the state legal level that, although the arguments are true, do not change the structural relations of injustice in access to natural resources and social production that is maintained and consolidated in small power elites. Thus, the law becomes illusory as long as it is not an expression of real structures of social relations. If the current relationships of oppression are not acted upon, speeches and statements play a sad role, no matter how profound their ethical inspiration.

This proposal does not imply a strategy, moreover, it only seeks to promote discussion, reflection and debate to achieve the establishment of minimum contents to the constitutional obligations of the State in order to enforce ESCR, considering the framework established by the Ecuadorian constitution. for health as an important objective fact that is filling with minimum acceptable contents for the enjoyment of a social right. This experience should be considered to promote real changes in the Constituent Assembly that give the possibility of legally protecting in an effective way certain ESCR that are fundamental to guarantee life, such as food and housing via access to land.

A more effective way to advance in the protection of ESCR is precisely to introduce minimum content in the Constitutions, as for example, not only should the right to land and territory of the peasant and indigenous person be declared and recognized, but also to establish (in this case in the Bolivian constitution) that at least 70% of the land suitable for agriculture, livestock, forestry, etc., must be owned by peasant communities, indigenous peoples and small producers. That 70% would give content to the constitutional obligation of the State as a guarantor of access to land and would also be a parameter to measure "progressivity" from the point of view of non-retrogression.

The effects of a measure like this would not only contribute to a considerable reduction in poverty, but would also be a boosting factor in the national economy, since it would put into production large tracts of idle land that have only paper owners. Another effect would be the decrease in unemployment since it would practically cancel the phenomenon of the liberalization of the indigenous peasant workforce (over exploitation and over population in communities) that today increases the percentage of unemployed, underemployed and informal traders or simply increases the alarming number of people who are engaged in begging.

Only the articulation of the social movement and its ability to constitute itself in political power will achieve a minimum balance in the reconstitution of the country's political and legal social relations, the only guarantee of effective compliance with ESCR and lasting social peace. It is about starting to build societies that can reinvent their future, their own development, without registering in a story written by others. In other words, the possibility of leaving the global script to which we are assigned. As Buenaventura de Sousa would say, "... the fight for human rights must be done even breaking the law ..." to build a fairer legality.

Permanent Assembly of Human Rights of Tarija Tarija

Video: Peasant House = Construction + Medieval Engineers Early Access #1 (June 2022).


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