RODRIGO GÓMEZ
VICTORIA UNIVERSITY, WELLINGTON
-
This Masters thesis project is an ambitious attempt to review, and discuss, the legal tie between Chile and Rapanui (Isla de Pascua), according to international law. From the beginning it reaffirms the strong position argued by a German legal scholar in 2008,[1] who states that, according to facts and law, the territory of Easter Island and its people are entitled to obtain political decolonisation. This is a view shared by an important, though non-quantifiable, number of the island's citizens who likewise have raised the question, internationally, several times.[2] Basically, political decolonisation is initiated when the territory in question is formally declared as a 'Non-Self-Governing-Territory'(NSGT) before the General Assembly of the UN by self-initiative of the administrative power, in this case Chile, to be included on the C-24 list. The UN's Committee on Decolonisation, or C-24, supervises gradual processes on decolonisation of the existing colonies from their former colonial powers. As the projects reveals there are clear signs of the Chilean government's unwillingness to support this activist and academic point of view which may allow a consequent recognition of the colonial nature of Chilean state relationship with Easter Island. Given the actual state of affairs, and in order to get the island's inclusion on the C-24 list, the MA project proposes a specific recourse to achieve it: to devise the legal basis upon which the 'judicial' decolonisation of Rapanui would be accomplished. That is, what are the legal arguments that could bring the state of Chile before the Inter-American Commission on Human Rights, which is part of the Organization of American States (OAS) of which, Chile is member?
-
The central allegation flows from and through the Human Rights rationale. Here it is contended that the state of Chile has been breaching, systematically, namely voluntarily or involuntarily, several binding norms of international law regarding political freedom, especially those which protect the right of political self-determination of peoples. The case does not focus attention on the facts of the barbarism of colonialism, which is a common strategy for arguing national self-determination in Oceania, but rather it focuses on the question of periodising when they were committed, that is, whether it was within or outside the formal colonial era.
-
The legal importance and consequence of this reasoning is the matter of 'intertemporal law'.[3] What are the particular international law principles applicable by the time in question? To international law temporality is essential to determine the rule applicable to the case. The case depends not solely on proving the evidence of colonialism: not just evaluating 'what' colonialism happened but also 'when' it happened. Thus it relies also on demonstrating its contemporaneity. Therefore, if the project is capable of displacing a very politicised issue from the arena of politics and activism vis-à-vis establishment, to the judicial terrain, then, there will be not a question of mere political will but a matter of law. The goal of my thesis is hence to appropriate an issue from one realm to another: transferring it from politics to law, from politicians to lawyers.
-
On the one hand, since the initial 'principle' of self-determination became, in 1966,[4] the 'right' of self-determination, colonialist practices were considered atentatorias or contrary to the order and form prescribed by international law. The existence of the C-24 is the logical consequence of the political will to eradicate the exercise of colonialism. On the other hand, however, we can still observe the international community's toleration in regards to some cases and its inconsistency in the application of those apparently binding rules. The cases of Hawai´i, West Papua or Tahiti exemplify the egregious contradictions when observing the correct application of the law. In the case of Rapanui, my thesis assumes the existence of these incoherencies[5] and therefore strives to search for alternative scenarios whereby the political self-determination of Easter Island could be accomplished.
-
Only rights are arguable before a court of justice and, as far as legal dispositions are concerned, when Human Rights treaties are breached by the state apparatus after its ratification, a person or group of persons may exercise their right of appearance to correct and amend it. The American system of OAS allows that. In the litigious scenario, imagined in my thesis, Rapanui obtains a binding decision from the OAS recognising the duty of Chile to declare before the UN that it maintains a NSGT in the Pacific and subsequently Chile should comply with the sentence.[6] The hypothetical result, in practical terms, is believed to have the ability to push official recognition, and subsequent commitment, before the C-24 or, at least, give extra strength to the island's wish for self-government.[7]
-
The thesis project aims to shift almost entirely the legal standpoint of analysis in regards to the sovereign legitimacy of Chile on Easter Island in two different but linked ways: Unlike common understandings which demarcate the period of Chilean colonialism from 1888 until 1966, the thesis argues that this period was only the preparation for the massive intervention which came after. In the years 1966 and 1967, respectively, the Ley Pascua or Easter Island Act was enacted and published. Through this Act, islanders officially became citizens of the republic[8] and bureaucracy[9] was brought to the island. Regardless of the positive advance which represents the fact of becoming 'citizens', the thesis understands that the 1966 milestone marks the finalisation of a sui generis proto-colonial period. Hence it is only after 1966 when the island is effectively colonised. The striking coincidence is that this happened when most of the colonised world, including the territories of Oceania, was in the midst of political decolonisation. The thesis portrays this paradoxical fact in high relief. On the one hand, while the world, and Chile included, were signing the main (UN) treaty concerning political self-determination,[10] on the other hand, Chile was beginning its own effective process of political colonisation in Rapanui.
-
Another one of the key interventions of this thesis, diverges from the common place understanding (held also by both Rapanui and Chilean politicians) that the island's sovereignty was ceded by the Rapanui chiefs in 1888 through the so called Agreements of Wills or the Deed of Cession and Proclamation.[11] In contrast, what I argue is that the island's sovereignty is being given away by the mode Prescription or effective[12] occupation of the territory. Instead of cession of sovereignty, the mode by which Chile acquired Rapanui was the presumption of the right of Chile above the right of the natives and that this assertion over this portion of island territory has been based on a long-term exercise of Chilean institutionalisation on the island. In other words, the way by which Easter Island became Chilean is through international toleration vis-à-vis consolidation of Chilean institutions over time.[13] This divergent point of view, when assumed, weakens Chile's assertion of sovereignty because the animus of lord and owner must be followed by effective occupation of the territory. And, acts of efficient and solid occupation, it is argued, have been occurring only since 1966 when Chile realised (consciously or not) that it possessed a distant territory still awaiting domination. The aim of this reasoning targets the so called 'critical date' that is to establish a certain date to determine the initiation of effective occupation. At the same time, the critical date serves to determine the 'intertemporal law' applicable, as explained above.
-
My thesis is divided into two chapters. Chapter one theorises on sovereignty, ownership, nationality, ethnicity and the role of Pacific Studies in assisting our understanding and approach in regards of and towards these concepts. Chapter two, develops in depth the legal argumentation already mentioned and it presents the judicial steps through which the political decolonisation of Rapanui could be alleged in courts. In between, some issues regarding the current reality of the island, from the personal perspective of the author, are introduced. Issues like the cash generated by the tourism boom; state-owned land re-appropriated by force; immigration of mainlanders; the island's political and administrative structure; and alcohol and marijuana use and abuse are all simply presented to address diverse audiences. Likewise, I wish to communicate my struggle[14] when living on the island. My writing may at times become passionate, seemingly irrational and disordered to reflect this struggle. To evoke in the reader feelings similar to what I felt, scholarly style will be mixed with everyday and sometimes prosaic language.[15] The testimony describes the overlapping miscommunication and contradictions of both government and the indigenous people of Rapanui: bureaucrats proposing and implementing policies to what they see as the solution to improve island's conditions while peoples' demands used to overcome those same initiatives since they seemed to be incapable to render in clear political terms what they saw as just for them. These realities are plainly unveiled on both sides of the Pacific Ocean in order to challenge both mainlanders and islanders to reach a point of connection after decades of continuous misunderstanding.
-
The starting point of the project is intentionally philosophical. It begins with some deconstructive thoughts on the concepts of sovereignty and ownership, both of which are seen, as two sides of the same Western legal coin: the bipolar way by which the Occident, either individually or socially, represents its bond with the land. This notional representation is contrasted with those relations between persons and land apparently observed in early Polynesia. From a legal point of view, pre-contact Polynesian societies[16] seemed to have mixed, in one concept, what for Westerners functions as two overlapping concepts: the sovereign power of state asserting domination and the individual right to possess that same land. My thesis speculates on the 'political dimension'[17] of the land tenure system in ancient Polynesia to conclude that a 'unified' legal concept was behind it and that ethnographers and anthropologist habitually misrepresent it[18] by making it resemble what has been called common or collective ownership.
-
My thesis suggests the reformulation of this depiction of Polynesian land tenure to encourage political theorists to analyse the particular way through which Polynesians governed land. The thesis views as inappropriate the analysis of the theme of land tenure by assuming the notional components[19] of the Roman law of property. By accepting the 'unified' proposition, the politics of Rapanui, amid the struggle for self-determination, would be facilitated. For the author, the unified re-depiction could make possible the recuperation of indigenous concepts which have been overlooked without falling into fallacious ideas, for example that Polynesians believed in Mother-Earth. On the contrary, in the case of Rapanui people, within the era of colonisation and land dispossession, we could recover notions by knowledge rebuilding. Islanders would have the opportunity to transcend western logics by re-searching for roots which I believe still endure. By accepting the idea that the people of the island still transmit some of these ancient notions, likewise, there is a chance to initiate an alternative standpoint when dealing with the central political issues: land ownership and self-determination will become just one question: who 'controls' the territory.
-
The modern concepts of nationality and ethnicity are also addressed but solely from a legal perspective. Both are important in terms of legal discrimination to determine what the entitlements are, whether it is the right of 'political' or just 'cultural' self-determination. This is a determinant distinction as far as the law of decolonisation is concerned. Nations are perceived as independent bodies and considered as such thanks to geographical, racial and linguistic considerations, whereas ethnicities are solely worthy of cultural respect since they are seen not as an independent entity but rather as 'integrated' in and by the nation-state order under which they struggle to survive. For the first group of peoples, the law of decolonisation applies, for the second group of 'ethnicities', the C-169[20] and the GA Res 61/295[21] apply. Hence, depending on a simple legal distinction, the same nation or people may be seen as a 'people' or an 'ethnicity'. This carries an important legal consequence from the perspective of international law. In the case of Rapanui, the Chilean government since 1993 depicts Rapanui as an ethnicity and therefore applies to them the law of ethnicities above mentioned.
-
The intended role of Pacific Studies, as an area of knowledge is reviewed. Its apparent goals to become an inter-disciplinary bridge, but focusing also on indigenous studies accessed from within, will be discussed. I also use some methodological tools proposed by Pacific scholars, to justify this thesis as a MA project in Pacific Studies. And, for example, throughout the writing a priority place is given to the personal first-hand experience of the author. My 'personalised stakes'[22] on decolonisation are evinced in passionate words which, far from hiding agendas, openly show my liberating and libertarian intentions. The author hopes to become an intellectual bridge between colleagues and politicians of both from the island and from the mainland. As well as becoming an intellectual forklift for the just demands of pascuenses in their struggle for self-determination, the author wishes, equally, to feed his soul with that dream which accompanies his own self-empowerment.
Endnotes
[1] See Lorenz Rudolf Gonschor (August 2008) 'Law as a tool of oppression and liberation: institutional histories and perspectives on political independence in Hawai´i, Tahiti Nui / French Polynesia and Rapanui,' thesis submitted to the graduate division of the University of Hawai´i at Mānoa in partial fulfilment of the requirements for the degree of Master of Arts in Pacific Islands Studies, unpublished.
[2] 'In 1983, the Council of Elders 'sent a well publicised letter to the United Nations and to several world leaders, demanding justice for the Rapanui … Chileans feared that the Committee wished to promote independence.' See Grant McCall (1994), 'Rapanui and Chile. An example of land and colonialism from the Pacific,' Indigenous Affairs, International Work Group for Indigenous Affairs, Copenhagen No 4, p. 37; 'In 1998, 1,200 Rapanui signed a petition to the UN decolonization committee and asked for a referendum on independence, with apparently no reaction.' See Gonschor, 'Law as a tool of oppression and liberation,' p. 157.
The Secretary of the Decolonization Committee (C-24), … remembers speaking to some people from Easter Island around 2000-2001 regarding participation in the UN's decolonization seminar and the C-24's substantive session. He explained to them at the time – that the C-24 is only mandated by the UN General Assembly to deal with the Non-Self-Governing Territories on the C-24 list (currently 16), so their participation was not possible. Since then, there has been no further contacts. In other words, for these reasons, no petition from Easter Island was ever put before the Committee.
See Lone Jessen, 6 May 2009, e-mail communication, Political Affairs Officer, Decolonization Unit, Department of Political Affairs, United Nations, NY.
[3] See Malcolm N. Shaw (2003) International Law, fifth edition, Cambridge: Cambridge University Press, p. 429.
[4] 'International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights.' GA Resolution 2200 (XXI), General Assembly, 1496th plenary meeting, 16th December 1966. Online: http://www.un.org/documents/resga.htm, accessed July 2009.
[5] It is not part of this thesis to analyse the motives, causes or rationalisations which might explain such discriminatory attitudes.
[6] Chile has declared officially its will to implement the decisions coming from sentences of the Commission on Human Rights.
[7] 'Rapanui wishes for political autonomy have not been taken sufficiently into account.' See Maria Riet Delsing (September 2009) 'Articulating Rapanui: Polynesian cultural politics in a Latin American nation-state', PhD dissertation, University of California Santa Cruz, p. 195.
[8] 'Rapanui became a full part of Chile in 1966, with islanders becoming full citizens after 78 years of virtual slavery.' See Grant McCall (1988) 'Chile's bitter Pacific legacy,' in Pacific Islands Monthly, vol. 59, no 11, page span of article, p. 44.
[9] Which, so far, it had been taken by the Navy.
[10] The International Covenant on Civil and Political Rights, Resolution 2200 (XXI), 1496th plenary meeting, 16th December 1966.
[11] See 'Informe de la Comisión de Verdad Histórica y Nuevo Trato de los Pueblos Indígenas', entregado a Su Excelencia el Presidente de la Republica de Chile el 28 de octubre de 2003. online: http://biblioteca.serindigena.org/libros_digitales/cvhynt/v_i/1p/v1_pp_3_rapanui-Title.html, accessed 26 May 2010.
[12] In international law the so called effectivités are determinant. The exercise of effective occupation is crucial to justify the acquisition of a territory by acquisitive prescription. See Shaw, International Law.
[13] Without opposition of foreign powers the sole manner of avoiding final consolidation would be the opposition of insiders to it.
[14] Both as outsider, due to its origins, and as insider due to his emotional involvement in local politics after seven years of residence on the island.
[15] See Edith Grossman (nd), The technique of Antipoetry, Facultad de Filosofia y Humanidades, Universidad de Chile, English version online: http://www.nicanorparra.uchile.cl/english/technique.html, accessed 29 June 2010.
[16] Namely Samoa, Tonga, Marquesas, Tahiti, Huahine, Rapanui and Aotearoa.
[17] See Eddie T. Durie (1994) 'Māori custom law,' Wellington, unpublished paper, p. 64.
[18] A misrepresentation which is very alive even nowadays.
[19] Absoluteness, perpetuity, exclusivity and indivisibility.
[20] 'Convention concerning Indigenous and Tribal Peoples in Independent Countries,' Convention 169 ILO, International Labor Organization, Adopted on June 27th 1989 Geneva, in Session 76th of the General Conference. Coming into force: 05.09.1991. Online: http://www.ilo.org/ilolex/english/convdisp1.htm, accessed 29 June 2010.
[21] 'United Nations Declaration on the Rights of Indigenous Peoples' (2007) GA Resolution 61/295, Sixty-first session, agenda item 68, 107th plenary meeting, 13th September 2007. Online: http://www.un.org/documents/resga.htm, accessed 29 June 2010.
[22] 'Pacific studies is not only an academic field; it is an especially intimate field that people enter, often with highly personalised stakes. Pacific studies contains awesome liberatory forces.' See Teresia Teaiwa (2001), 'L(o)osing the Edge,' The Contemporary Pacific, vol. 13, no. 2 (Fall 2001):343–57, p. 352.
|
