Pluri-National State-Building Processes in Ecuador Through Interculturality and Human Rights as a Process of Real Independence

Daqui Lema

Pontificia Universidad Católica del Ecuador

Introduction: Situating the Independence Processes in Abya Yala

Independence processes in the various states in Abya Yala (the Americas) require a critical analysis of the traditional narratives that were elaborated across the entire continent to conceal the ancient history of indigenous peoples prior to 1492. Historical constructions and deconstructions are fundamental to understanding current social and legal processes in countries such as Ecuador and Bolivia, where – through interculturality, human rights and philosophical changes – the proposal of a pluri-national state has been put forward as an alternative to the classic anthropocentric and mono-national approach produced by colonization. This post, thus, discusses how indigenous rights, after being widely suppressed, may find a new venue for their exercise in the new Constitution of Ecuador as well as other human rights mechanisms once, and if, they are enforced. 

The denial of indigenous peoples’ rights has been one of the pillars that has characterized the history of the formation of states in the Americas. As is well-known, the application of the principle of Terra Nullius to affirm – under the then international law – the non-existence of humans in newly “discovered” lands provided the legal basis to justify colonization. Subsequently, constitutional norms adopted during the nation-building projects of the nascent states downgraded the social and legal status of indigenous peoples in the new societies and legitimized assimilation processes. For instance, in the case of the Ecuadorian Constitution of 1830, Article 68 stated that “[t]his Constituent Congress appoints the venerable parish priests as guardians and natural parents of the natives by exciting their ministry of charity in favor of this innocent, abject and miserable class”. 

Within the identity-building processes of the new nation-states in the region, indigenous cultures were discredited and treated as if they were obsolete and archaic and thus needed to be erased. They were found to be in contradiction with the new national identities that were emerging. This contraposition has defined the implementation of different state policies vis-à-vis “diversity”. Violence was pursued in many cases, thereby decimating indigenous peoples, as in the case of the “Desert Campaigns” conducted by Argentina during 1876 and 1971. In other cases, indigenous peoples have been included in national identity-building projects on the condition that they assimilate to dominant cultural characteristics, language, values and traditions. This is the case in some countries such as Canada, where the state’s responsibility for committing cultural genocide vis-à-vis indigenous peoples through “policies of aggressive civilization” has been recently ascertained. 

Such historical events have strengthened the claims of indigenous movements, which, especially in the last decades, have achieved important recognition in relation to indigenous political participation rights, cultural and linguistic policies, et al. Most recently, collective rights have been recognized. This is the case in relation to the 2008 Constitution of Ecuador where a pluri-national state has been conceived of as a “Social Contract” that is defined not only by individuals but also by “converging” principles, values and aspirations of all Peoples and Nationalities and their collective realities. This is further to be found in the “interculturality principle”, which is understood as those horizontal relations between cultures that guarantee a common identity based on the recognition and the respect of diversities in order to achieve the “Sumak Kawsay/Buen Vivir” as established in Article 275 of the Ecuadorian Constitution. 

The Role of Human Rights

Human rights’ recognition has been fundamental in initiating the social change processes on the American continent, particularly in Latin America. However, an effective human rights practice seems far from being achieved, especially in the case of indigenous peoples and the recognition of their ancestral territories. This is chiefly due to the political instability that characterizes the region, as well as to the high levels of corruption. Corruption privileges the investments of national and transnational companies that are interested in the exploitation of local natural resources, and is sustained by politicians who pursue a neoliberal idea of ‘progress’ and ‘economic growth’. This approach has simply replaced the colonial imperatives of evangelization and civilization and remains the main obstacle to the construction of the pluri-national state that proposes an eco-centric approach that is based on the respect of the Pacha Mama (Mother Earth) as established in Article 71 of the Ecuadorian Constitution.  At the same time, thanks to the processes implementing human rights instruments, states like Ecuador and Colombia have recently developed interesting mechanisms such as the “Constitutional Block”, according to which human rights treaties and mechanisms must be progressively transposed into national legislation and reflected in judicial interpretation in order to ensure the concretization of human rights as established by Article 424 of the Ecuadorian Constitution. In other words, the “Constitutional Block” allows the introduction at national level all those international instruments and processes that protect human rights such as those of indigenous peoples.  

Also, the Inter-American System for the protection of human rights has played a crucial role in the recognition of indigenous people’s demands also in Ecuador, e.g., in the well-known case of the Kichwa Indigenous People of Sarayaku v. Ecuador. The mandatory (although, still unfulfilled) application of this decision has proved to be an important instrument to contrast the injustices perpetrated by the Ecuadorian state vis-à-vis indigenous peoples, particularly, in this case, with regard to their Free, Prior and Informed Consent (FPIC). 

There are also other mechanisms that, in recent years, have allowed indigenous peoples to defend their rights at the national level. Legal remedies are considered an effective mechanism to protect human rights against violations and all Ecuadorian individuals, peoples and nationalities are entitled to access them.  In 2018, these mechanisms were fundamental in defending Indigenous collective rights in the case A’i Cofán de Sinangoe that was filed by the Ecuadorian Ombudsman and became a milestone and a key judicial precedent for the recognition of indigenous peoples’ right to access to water, environmental rights and FPIC, thereby showing also how international human rights treaties and processes may have a positive impact in national legislation. 

Concluding Remarks: The “Right to Resistance” to the Sumak Kawsay Achievement

The constitutional reform of 2008 in Ecuador set important challenges for the citizens of a pluri-national state. Beyond international human rights and constitutional rights and guarantees, there is another key instrument, that is, the “right to resistance” included in the Constitution’s Article 98, which states: 

“Individuals and communities shall be able to exercise the right to resist deeds or omissions by the public sector or natural persons or non-state legal entities that undermine or can undermine their constitutional rights or call for recognition of new rights.”

Although the interpretation of this provision is still evolving, this right has recently been invoked by social leaders and indigenous organizations and has become a key legal instrument in recognizing social mobilization. The contraposition between the state’s general principles as authority/obedience and the right to resistance define new challenges for the project of pluri-nationality, especially with regard to extractive projects in highly biodiverse territories that tend to produce pollution and fuel socio-environmental conflicts as in the case of the Buenos Aires and Hanrine mining projects in the province of Imbabura. Hence, the right to resistance identifies the first step for citizens’ empowerment in a pluri-national state like Ecuador beyond the model of representative democracy by giving to historically excluded groups, such as indigenous peoples, an opportunity to have a say and challenge and change deeply-rooted social structures that still reflect racism, sexism and discrimination, participating through their own ways of organization, beyond traditional political party systems, producing thus a deep social change in Ecuador, as is evidenced by the current relevance that indigenous movements have achieved with regard to the country’s governability. 

Pluri-national states, in this sense, are processes that are still redefining power balances, new economic relations, reformulating ideologies, epistemologies and ways to construct knowledge, in order to understand human beings as a part of a complex system of life. This includes giving space for contradictions, searching for contributions from indigenous knowledge, and identifying the challenges of modernity and post-modernity. In sum, the independence process in Ecuador is still ongoing almost two centuries after independence was officially proclaimed. The result of this complex processes should be the Sumak Kawsay achievement as a process that is based on the implementation of human rights instruments. 

Daqui Lema is a Professor in the School of Law at Pontificia Universidad Católica del Ecuador, Ibarra seat, and Secretary of the Kichwa Cabildo of Otavalo (Ecuador)

Suggested Citation: Daqui Lema, ‘Pluri-national State-building Processes in Ecuador through Interculturality and Human Rights as a Process of Real Independence’IACL-AIDC Blog (21 October 2021) https://blog-iacl-aidc.org/independence-and-indigenous-peoples/2021/10/21/pluri-national-state-building-processes-in-ecuador-through-interculturality-and-human-rights-as-a-process-of-real-independence.