Tensions and Expectations in the Pluralist Constitutionalism of Latin America: Collective Rights Versus Individual Rights

Abstract

Still at the beginning of the last quarter of the 20th century, the integrative model in Latin American constitutionalism was fully in force, whereby indigenous communities were recognized as simple ethnic minorities. From then on, an increasingly pluralistic conception, sympathetic to the effects of multiculturalism inherent in the 1982 Constitution of Canada, and also to the text of the 1989 ILO Convention 169, led Latin American constitutionalism to adopt progressively more multicultural profiles, as shown by the 1991 Constitution of Colombia. The UN Declaration on the Rights of Indigenous Peoples (2007) gave rise to the new plurinational constitutions of Ecuador (2008) and Bolivia (2009). The recognition of indigenous communities, sometimes as peoples and sometimes as communities or nations, entails the acceptance of indigenous customary law and indigenous jurisdiction, as well as the corresponding conflict resolution procedures. The complex articulation of state and indigenous or communal rights has sparked intense debates around issues as fundamental as the scope of indigenous law, the determination of indigenous community borders, the relevance of cultural exceptions, and those relating to the problematic coexistence of human rights and cultural rights.