Un Mundo Donde Quepan Muchos Mundos: A Postcolonial Legal Perspective Inspired by the Zapatistas

Global Jurist Frontiers Volume 9, Issue 2

2009

Article 10

Un Mundo Donde Quepan Muchos Mundos: A Postcolonial Legal Perspective Inspired by the Zapatistas Judith Schacherreiter∗

∗

University of Vienna, [email protected]

Recommended Citation Judith Schacherreiter (2009) “Un Mundo Donde Quepan Muchos Mundos: A Postcolonial Legal Perspective Inspired by the Zapatistas,” Global Jurist: Vol. 9: Iss. 2 (Frontiers), Article 10. Available at: http://www.bepress.com/gj/vol9/iss2/art10 c Copyright 2009 The Berkeley Electronic Press. All rights reserved.

Un Mundo Donde Quepan Muchos Mundos: A Postcolonial Legal Perspective Inspired by the Zapatistas Judith Schacherreiter

Abstract On January 1, 1994, the day when NAFTA entered into force, a group of indigenous appeared from the Lacandon jungle in Chiapas, occupied the city hall of San Crist´obal de las Casas, presented themselves as the Zapatista Army and announced: “We are the product of 500 years of fighting. [. . . ] But today we say: It is enough.” This was the beginning of a rebellion which attracted international attention and is still going on today. Taking the announcement seriously, this article traces the history of 500 years from a legal perspective. By considering also the international dimension of this history, it shall be revealed that the reasons for the Zapatista revolt range from the Lacandon jungle through Chiapas, Mexico, Latin America, to the world and its global order. The article will focus on their demand for “land and freedom” which leads to the so-called agrarian question and the long history of bloody disputes about land, means of existence, natural resources, autonomy, sovereignty, power, dominance, oppression, life and death. The history of Mexican land law (sometimes as a legal reflection, sometimes as a result and sometimes as an origin of these disputes) shows with outstanding clarity international structures of hegemony. Foreign influence and legal transfer in accordance with European and U.S. economic interest have been shaping this area of law since colonization. On the other hand, history also gave birth to strong counter-hegemonic movements: the Mexican Revolution at the beginning of the 20th century and today the Zapatista rebellion. The objective of the article is the following: By putting the Zapatista struggle for land in the historical and global context, their “anti-systemic” or “postcolonial” quality shall be revealed. Against this background, the legal analysis of their rebellion shall be used to develop cornerstones of a postcolonial legal perspective. Hence, independent from the chronological order, the theoretical starting point is January 1, 1994. History will be approached as a memory that flashes on this day in the moment of uprising. KEYWORDS: land law, Mexico, Zapatistas, agrarian reform, property, legal transfer, postcolonialism

Schacherreiter: Un Mundo Donde Quepan Muchos Mundos

I.

Introduction

st

On the 1 January 1994, the day when NAFTA entered into force, a group of indigenous appeared from the Lacandon jungle in Chiapas, occupied the city hall of San Cristóbal de las Casas, presented themselves as the Zapatista Army and announced: “We are the product of 500 years of fighting. And today we say: It is enough.” This was the beginning of a rebellion which attracted international attention and is still going on today. Taking the announcement seriously, this article will trace the history of 500 years from a legal perspective. By considering also the international dimension of this history, it shall be revealed that the causes of the Zapatista revolt range from the Lacandon jungle through Chiapas, Mexico, Latin America, to the world and its global order. The article will focus on their demand for “land and freedom” which leads to the so-called agrarian question and the long history of bloody disputes about land, means of existence, natural resources, autonomy, sovereignty, power, dominance, oppression, life and death. The objective of this analysis is the following: By putting the Zapatista struggle for land in the historical and global context, their “anti-systemic”1 or “postcolonial” quality shall be revealed. Against this background, the legal analysis of their rebellion shall be used to develop cornerstones of a postcolonial legal perspective. Hence, independent from the chronological order, the theoretical starting point is the 1st January of 1994. History will be approached as a memory that flashes on this day in the moment of uprising.

II.

The eve of Spanish conquest

On the eve of the Spanish conquest, under the Aztecs’ system of pre-colonial Mexico,2 land was subject to different legal regimes depending on social class and function of the land: land of nobles, land for public purposes and land of the free population.3 Land of the free population was held by communities and cultivated in common.4 This land, called calpulli, was hereditary but inalienable; fruits belonged to those who actually cultivated it.5 Land was not seen as an object of possession or ownership but as sacred mother-land, a goddess which gives birth and alimentation to human beings and to which the human being returns after death. Furthermore, land was closely related to the indigenous community as a fundamental element of communal identity, 1

Aguirre Rojas (2002) p. 25 f. The agricultural system of the Aztecs is the most relevant antecedent of Mexican agrarian law, Díaz de León (2002) p. 18; Chávez Padrón (2005) p. 137. 3 Díaz de León (2002) p. 32; see also Chávez Padrón (2005) p. 142 ff. 4 Díaz de León (2002) p. 32 ff; Chávez Padrón (2005) p. 145. 5 Chávez Padrón (2005) p. 145. 2

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autonomy and development and an important object of rites and myths. Many legends refer to the sacred relation between human beings and land.6 It had an important social function of organizing work and justice.7 These visions are vivid in indigenous communities until today, strongly connected with communal forms of cultivation and protected by articles 13 ff of the Convention 169.8

III.

Conquest and occupation

ACQUISITION OF TERRA NULLIUS The Spanish conquest fundamentally changed the land regime. The basic act from which the new regime evolved was the occupation of land which was justified with various legal-theological arguments based on pontifical bulls and racist ideologies.9 The most relevant pontifical bull was the Bull Inter Caetera of the Pope Alexander VI of 4th May 1493, also referred to as the Bull of Partition and Demarcation.10 With this bull, the pope arbitrated as an international authority the conflict between Spain and Portugal about the distribution of land and power in America and delimited Spanish against Portuguese colonial territory.11 In accordance with these limitations, the pope assigned to Spain “all islands and mainlands found and to be found, discovered and to be discovered […] together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances” provided that this land was not in the “actual possession of any Christian king”. Furthermore, the pope assigned to the colonizing countries “free power, authority and jurisdiction” over the colonized land and entrusted them to instruct the indigenous population in “Catholic faith” and “good morals”.12

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López Bárcenas and Espinóza Sauceda (2002) p. 21 f. Manzanilla-Schaffer (2004) p. 437 f. 8 C 169 Indigenous and Tribal Peoples Convention of 1989; Nigh (2001) p. 229 ff. 9 For further justifications see Cruz Barney (2004) p. 141 f., 145 ff., 150 f; Chávez Padrón (2005) p. 151 ff. Regarding the “discovery principle” by which European “explorers” acquired land, its justification and the legitimization by international law see also Mattei and Nader (2008) p. 67 f. and Mattei (2000) p. 4. 10 Díaz de León (2002) p. 48; Manzanilla-Schaffer (2004) p. 163 ff.; Cruz Barney (2004) p. 145 ff. The bull is published in Documenta Catholica Omnia, www.documentacatholicaomnia.eu/ 01_01_1492-1503-_Alessandrus_VI. html 11 Manzanilla-Schaffer (2004) p. 163; Cruz Barney (2004) p. 147. 12 See the bull on www.documentacatholicaomnia.eu/01_01_1492-1503-_Alessandrus_VI.html, and Manzanilla-Schaffer (2004) p. 163 ff.; Cruz Barney (2004) p. 145 ff. 7

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Indigenous interest and titles in land were not even mentioned in the Bull Inter Caetera, an ignorance based on racist ideas of inferiority and natural dominance.13 As “pagans, wild hordes and unbelievers”,14 they were not accepted as capable of having the same rights as the Spanish colonizers. Their “sins against nature” and their infidelity were deemed to deprive them of their titles in land. Hence, their land could be considered as terra nullius: land that does not belong to anybody (to any Christian) and therefore can be occupied by so-called “first acquisition”.15 The notion of terra nullius not only reflects the racist negation of rights of the indigenous people but also shows very clearly that the indigenous title is “fundamentally at odds” with the European notion of property, the proper, ownership and possession. Indigenous people may work the land and have an intimate relation to it but do not affiliate them to the land with a concept of property or ownership. “The relationship is rather a sacred and ancestral one.”16 Hence, the characterization of land as terra nullius itself constitutes an act of legal dominance, because it submits the respective land under European legal categories without considering the local approaches. Furthermore, the right to occupy vacant land implies the assumption that property rights arising from such occupation would constitute a relationship (only) between the owner and the property, still today the classic vision of private property in Europe. This view ignores the exclusive effect of property, because only if those who are excluded from property are not taken into account, this form of acquisition can be considered as not affecting anybody and therefore as natural and legitimate. However, if the excluded subjects are considered, it becomes evident that an occupation even of vacant land, actually, does affect other interests: the interests of those who cannot use the land any longer, the “passive subjects”.17 By hiding them, private property can be presented as a natural relationship between a human being and land. It is interesting that this idea about private property as a natural concept will reappear in Mexican liberalism after independence and be used as a justification to abolish indigenous communal land which survived colonialism.18 This natural character of property law disappears immediately when we consider that Robinson can’t acquire property rights before Friday comes to his island. Taking Friday (as passive subject) into account reveals property as a social phenomenon. In our case, the forgotten passive subject is the indigenous population. 13

Cruz Barney (2004) p. 150 f. Díaz de León (2002) p. 48. 15 Díaz de León (2002) p. 48; Cruz Barney (2004) p. 150; Morales Padrón (2008) p. 134. 16 Young (2003) p. 51 f. (referring to nomads, but the idea also applies in this case); with regard to Peru see Mattei (2000) p. 4. 17 Azúa Reyes (2004) p. 15 ff. 18 See below, IV. 14

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PRIVATE PROPERTY AND PUBLIC POWER Based on the idea of occupation of terra nullius, the Spanish Crown acquired indigenous land and distributed it among the colonizers and the Church,19 whereas the assignation of land often implied the assignation of indigenous people as workforce.20 The land was given to the Spanish colonizers by different types of regal assignation. After a few years living on the land they were entitled to sell it as their “own thing” (cosa propia) in accordance with their free will.21 Later, the colonizers could acquire land also by buying it from the Spanish Crown and by prescription.22 Hence, the occupation of land and the regal donations of the Crown became the basis on which private property in land developed. This new form of property was modelled in accordance with concepts of Castellan legislation and Roman law.23 The Catholic clergy who came together with the Spanish conquerors in order to realize the pontifical mandate of evangelisation24 also acquired land in form of individual property by regal donations and later also by private law concepts such as purchase.25 Nevertheless, various indigenous communities survived the colonial era and kept at least part of their land26 which, however, often could not satisfy the most essential human needs.27 Part of this land was turned into individual property and another part was submitted to special rules of communal property. These special rules were partly based on the acknowledgement of existing communities but also on Castellan concepts of communal law.28 The colonial regime resulted in the concentration of land in very few hands. At the end of the colonial era, the church was one of the biggest land owners, followed by huge Spanish and Creole haciendas.29 Hence, occupation of land and property rights in land had become the basis and manifestation of economic and political power of the conquerors and their descendants. In addition, occupation also had a public law component: the submission of the

19

Chávez Padrón (2005) p. 161 ff. (Spanish conquerors), p. 189 ff. (Church); Díaz de León (2002) p. 62 ff; Rivera Rodríguez (2000) p. 25 ff. and 34 f.; Cruz Barney (2004) p. 509 ff. 20 Chávez Padrón (2005) p. 164, 167, 178 ff.; Díaz de León (2002) p. 49 Fn 86. 21 Chávez Padrón (2005) p. 161, 163. 22 Chávez Padrón (2005) p. 165. 23 Rivera Rodríguez (2000) 34 f.; Cruz Barney (2004) p. 510 f. Chávez Padrón (2005) 163 ff., 290. 24 See the Bull Inter Caetera of Alexander VI of 4th May 1493, published and translated on www.documentacatholicaomnia.eu/ 01_01_1492-1503-_Alessandrus_VI.html. 25 Chávez Padrón (2005) p. 189 ff. 26 Chávez Padrón (2005) p. 185 ff. 27 Chávez Padrón (2005) p. 188. 28 Díaz de León (2002) p. 69 ff. 29 Rivera Rodríguez (2000) p. 35 ff.; Chávez Padrón (2005) p. 184 f., 190 f.; Silva Herzog (1973) p. 11 f.

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foreign continent as territory under the sovereignty of the Spanish Crown. As mentioned above, the Bull of Alexander VI, which legitimized the Spanish occupation, also included a concession of jurisdiction and sovereignty over the land to the Spanish crown. Hence, with the pontifical “donation-concession” the Spanish Crown was turned not only into the owner but also into the governor of the land and its population.30 This is also reflected in the so-called Requerimiento, a declaration of sovereignty and war which was read out by Spanish military forces to the indigenous population in order to assert their sovereignty. Accordingly, Spanish sovereignty followed from the donation of the pope who represented God and, therefore, held authority over the entire earth.31 Hence, the occupation of land constitutes not only the historical beginning but also the legal basis of European legal influence and dominance and of the development of private property. With its occupation, Europe constituted itself as the conquering ego and started the development as “Modern Europe” by affirming itself as the centre of the world against its first periphery Latin America.32

IV.

Independent Mexico

LIBERAL LAND REFORM The unjust distribution of land at the end of the colonial period mentioned before was one of the questions raised during the War of Independence (1810-1821) and the reason for the rural population to join this war. However, Independence was realized not by the indigenous and rural pueblo but by a powerful class of conservative creoles and clerics33 who conserved their land holdings and other privileges. Hence, during the first period of independent Mexico, land distribution did not change significantly.34 In the second half of the 19th century, as in many other independent Latin American states, classic European and in particular French liberalism gained strong ideological and political influence. Accordingly, the Mexican liberals pursued classic liberal ideas such as a secular state, capitalism, individual liberties, private property and equality before the law.35 Their aim was to create “a 30

Díaz de León (2002) p. 48, 49. Requerimiento, version kept by Las Casas, in Morales Padrón (2008) p. 341 f.; see also Cruz Barney (2004) p. 149. 32 Dussel (1994) p. 32; Dussel (1993) p. 74. 33 Brading (1973) p. 140 f.; Silva Herzog (1973) p. 10 f.; Calva (1993) p. 30 f. 34 Silva Herzog (1973) p. 10 f.; Calva (1993) p. 30 f. 35 Negretto and Aguilar-Rivera (2000) p. 361 ff.; Brading (1973) p. 145 ff., 178 ff.; Scholes (1952) p. 1 f., 9 f, 17 f.; Hale (1965) p. 201 f., 206 ff., 217. 31

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nation of small proprietors, yeoman farmers, and master craftsmen, with the free play of individual interest unhindered by restrictive laws and artificial privilege. Irrevocably individualistic, they assumed the classic economic doctrine of the invisible hand […]. Freedom, so they thought, would bring both prosperity and progress.”36 Huge ecclesiastic land holdings in mortmain were considered as the main obstacle to realize these ideals. Hence, the expropriation of the church and the submission of ecclesiastic land under the free market were two of the most important objectives of the Mexican liberals.37 However, the underlying idea was not only the desire to limit the power of the church but also the abolishment of corporate rights in general in order to create private property circulating on the free market for individuals. This idea was applied not only to the church but also to indigenous communities. Their way of live and in particular their concept of communal property were considered as part of a retrograde society.38 The invalidation of land titles acquired by the Spanish conquerors, on the contrary, never became the subject of national legislation although this demand gave rise to sporadic Indian uprisings.39 The most important legislation adopted for liberal purposes were article 27 of the Constitution of 1857 and the Law of Desamortization of 185640 (the so-called “Lerdo Law”). Article 27 of the Constitution of 1857 implied a concept of property plainly individualistic with Roman law characteristics41 and deprived civil and ecclesiastic corporations of the capacity to own land.42 Literally, article 27 stipulated: “Property of people cannot be occupied without their consent except for reasons of public utility and for compensation. [...] Neither civil nor ecclesiastic corporations, whatever their character, name or object, have legal capacity neither to acquire property in land nor to administer land, except for those buildings dedicated immediately and directly to services or objects of the institution.”43 Detailed rules on private property were implemented in the civil code the codification of which was initiated by Benito Juárez just after the adoption of the Constitution of 1857. In 1870, the responsible commission finished its work and provided a code which was adopted by almost all states of the Mexican Republic. 36

Brading (1973) p. 145 f. Brading (1973) p. 147 f, 175; Scholes (1952) p. 11 f. 38 Negretto and Aguilar-Rivera (2000) p. 376; Brading (1973) p. 149, 178; Hale (1965) p. 217. 39 Brading (1973) p. 181 f. 40 Ley de Desamortización de bienes de manos muertas de 25 de junio de 1856, No 4715 in Dublan and Lozano Collection; printed also in Díaz de León (2002) p. 132 ff. 41 Díaz de León (2002) p. 140; Chávez Padrón (2005) p. 230, 290 f. 42 Díaz de León (2002) p. 140. 43 Translated by the author. 37

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It had strong influence on subsequent civil law legislation and was largely reproduced in the Civil Code of 1928 which is still in force today. As many other codes of that time,44 the Mexican codification was based on the dominant liberal postulations and profoundly inspired by the Napoleonic Code of 180445 which reflected “the desire to break the power and privileges of the landed aristocracy, and to make land as freely marketable as possible.”46 Also the Lerdo Law was based on a “deep respect for property”47 and, accordingly, stipulated in its preamble that “the greatest obstacle for the prosperity and enlargement of the nation is the lack of free circulation of a substantial part of land property”.48 Ecclesiastic and civil corporations were deprived of their legal capacity to own or acquire immovable property (articles 1 and 25). The affected land could be bought as private property by the individual lessees (working on the land) within a period of three months (article 9). After three months, any other person was authorized to buy it (article 10). According to article 3, indigenous communities were also deemed as civil corporations.49 Therefore, they lost legal personality and communal rights, including communal property rights in land.50 With article 27 of the Constitution and the Lerdo Law, the legislators intended to convert those who were working and cultivating the land (as lessees) into individual property owners, create small land holdings, put land under the free market and thereby stimulate agricultural and industrial development. However, the results did not correspond to these intentions because those who were meant to buy the land did not do so. The reason was that they did not have enough resources at their disposal. Furthermore, they were threatened with excommunication by the church. Typically, the privatized land was bought after the expiration of the three-month-period by a powerful and wealthy class who did already own large land holdings.51 This also happened to indigenous land. It was fragmented and the single parcels were supposed to be acquired by the individual peasants. However, due to ignorance or lack of resources, the land was typically acquired by neighbouring huge land holders of the communities who turned the 44

Schlesinger et. al. (1998) p. 301 f.; Zweigert and Kötz (1996) p. 96 ff.; Mattei (1994) p. 201. Cruz Barney (2004) p. 708 ff.; López Betancourt (2007) p. 88 ff.; regarding the influence of French civil law in the world see Zweigert and Kötz (1996) 96 ff; Mattei (1994) p. 201 f. 46 Schlesinger et. al. (1998) p. 758. 47 Scholes (1952) p. 12. 48 Printed in Díaz de León (2002) p. 132. 49 Indigenous communities were expressly mentioned in a regulation on the Lerdo Law (article 11 of the Reglamento de la Ley de Desamortización del 30 de julio de 1856, No 1856 Dublan y Lozano Collection), on this reglamento see Chávez Padrón (2005) p. 225. 50 Díaz de León (2002) p. 140; Chávez Padrón (2005) p. 224 f., 230; Silva Herzog (1973) p. 16; Brading (1973) p. 150; Manzanilla-Schaffer (2004) p. 416 f. 51 Silva Herzog (1973) p. 15 ff.; Margadant Spamjaerdt (2007) p. 174; Chávez Padrón (2005) p. 227 ff.; Manzanilla-Schaffer (2004) p. 416 f.; Scholes (1952) p. 12 f. 45

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indigenous population into agricultural labourers under miserable conditions.52 Unequal land distribution and the misery of the indigenous population hit their peak during the era of Porfirio Díaz at the end of the 19th and the beginning of the 20th century. In this period, Western liberal ideals were pursued with even more ambition. Industrialization, modernization and foreign investment became the most important political objectives. The actor and beneficiary of these politics was the middle class mestizo.53 The preference of individual to communal property was justified with the supposed “natural character” of property. Private property was considered as a “natural right, not granted by the sovereign but at most limited by him”, a conception of property which we also find in the French Code.54 José María Luis Mora, lawyer, deputy and one of the most important Mexican liberal ideologues55 argued: “The right to acquire (property) enjoyed by an individual is natural, prior to society and corresponds to him as a man, so that society does no more than assure his possession. By contrast, the right of a community to acquire is purely civil, subsequent to society, created by the latter and hence subject to all the limitations which society wishes to impose.”56 Furthermore, communal property was considered not only as “less natural” but also as an expression of backwardness. As mentioned above, the indigenous population and its lack of individualism were considered as obstacles to progress and modernisation.57 Apparently, racism and marginalization continued being as omnipresent as during colonialism.58 It seems that among Mexican intellectuals and politicians the main controversial subject with regard to the Indians was the question whether or not it was possible to re-educate and elevate them to the higher culture of the mestizo and Western standards. The superiority of this culture was hardly questioned.59 Porfirio Díaz, in accordance with influential ideologues of that time, thought that the indigenous population could not be “modernized” in a foreseeable future. Hence, he deemed it necessary to attract investigation and immigration from Europe in order to cultivate land and stimulate agricultural development.60 This objective was realized on the basis of the laws of colonization and vacant

52

Díaz de León (2002) p. 140; Manzanilla-Schaffer (2004) p. 416 f.; Silva Herzog (1973) p. 16. Brading (1973) p. 147, 187 f. 54 Schlesinger et. al. (1998) p. 758. 55 As to his influence see Hale (1965) p. 200 ff. 56 Mora, Obras sueltas (1963) p. 305, quoted in Brading (1973) p. 148. 57 Powell (1968) p. 20. 58 Powell (1968) p. 19 ff., see in particular the examples on p. 28 f., 30, 33 f.; Hale (1965) p. 214 ff.; Volpi (2004) p. 173 f. 59 Powell (1968) p. 19 ff., 28 f., 33 f., Hale (1965) p. 215. 60 Powell (1968) p. 22 ff., 27; Silva Herzog (1973) p. 16. 53

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land61 and with the help of so-called compañías deslindadores which were authorized to delimit vacant land so that it could be colonized and cultivated by foreign individuals or companies. They received one third of the delimited land as “compensation”.62 Indigenous communities were severely affected by their activities because they lacked clear titles and the companies often acted arbitrarily.63 In many cases indigenous and small peasants were dispossessed illegally, whereby such dispossessions often were legitimized by state authorities. The land got concentrated even more in the hands of national and foreign investors for the disadvantage of the rural and indigenous population.64 Hence, the general population didn’t win with Independence; their misery became even worse. At the end of the era of Porfirio Díaz (1910), 80% of the peasants didn’t have their own land and were dependent on rural salary under circumstances similar to slavery. On the other hand, about 3,000 families owned almost all of the usable land65 and about 97 % of the territory was owned by 840 large land holders.66 Half of the national fortune was in the hands of foreigners.67

INTERNAL COLONIALISM This was the result of a land reform based on the ideological and legal reception from Europe. Contrary to the Spanish conquest, this time, reception did not result from violent foreign intervention but from national politicians adopting liberal ideology and abstract legal concepts like private property. They considered progress as almost synonymous with European liberalism and with the termination not only of the colonial, but also the pre-colonial and indigenous past.68 Within these politics of independent Mexico, typical characteristics of European colonialism continued, in particular ideological universalism, the idea of European superiority and racism. Hence, finally independent from Spain, Mexico internally reproduced European colonialism. 61

Ley sobre Colonización y Compañías Deslindadores del 15 de diciembre de 1883; Ley de Baldíos de 26 de Marzo de 1894; see also the predecessors Ley Sobre Ocupación y Enajenación de Terrenos Baldíos del 20 de Julio de 1863 and Ley Provisional sobre Colonización del 31 de Mayo de 1875. 62 Silva Herzog (1973) p. 18 f.; Powell (1968) p. 21.; Díaz de León (2002) p. 160 ff. 63 Díaz de León (2002) p. 161; Silva Herzog (1973) p. 18 f. 64 Manzanilla-Schaffer p. 417 f.; Silva Herzog (1973) p. 18 f. 65 Margadant Spamjaerdt (2007) p. 198; Silva Herzog (1973) p. 22 f. 66 Silva Herzog (1973) p. 22 f.; Ruiz Massieu (1987) p. 20; Manzanilla-Schaffer (2004) p. 418. 67 Margadant Spamjaerdt (2007) p. 189; Gaceta Parlamentaria of 16th of June 2000, p. 2. 68 Brading (1973) p. 150 ff.; Paz (2007) p. 269 f., 272; Powell (1968) p. 20 ff.; on the influence of French liberalism on the thinking of José María Luis Mora, one of the most important ideologues of that time, see Hale (1965) p. 201 ff. and Zea (1978) p. 75 ff.; on the influence on the thinking of Gabino Barreda, who was responsible for the education system under the government of Benito Juárez, see Zea (1978) p. 55 ff.

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Contrary to this view, it is often argued that the liberal land reform was a well intentioned law with unexpected outcomes. Accordingly, the only mistake of the legislators was that they did not sufficiently consider the economic and social reality where the adopted principles should be applied and therefore did not correctly estimate the real outcome.69 This might be true for individual liberals like Benito Juárez or Melchor Ocampo. However, with regard to the dominant racist and Eurocentric ideologies which continued after Independence, the aggravation of the situation of the indigenous and peasant population does not seem to be just an accident of inappropriate legal reception. Marginalization, dispossession and oppression were absolutely in accordance with this ideology. Hence, the acute misery of the indigenous and peasant population is also the result of the internal reproduction of colonization and European universalism in favour of national and foreign economic interests. From the dominant European perspective of that time, independent Mexico did exactly what they had to do: following the path of modern Europe which represents the “centre and end of universal history”70 in the sense of G. W. F. Hegel. Independent Mexico acted perfectly in accordance with this ideology of European superiority and universalism. On the other hand, although they did not succeed in enforcing their demands it is noteworthy to mention some of those who aimed for a social agrarian reform for the advantage of the rural population. Hidalgo and Morelos, for example, both leaders in the War of Independence, took the agrarian needs of the indigenous and rural population seriously but were defeated in the first years of the war.71 Another important person was Ponciano Arriago, member of the constitutional committee in 1856 who gave a famous dissenting opinion regarding the liberal land reform. However, neither Hidalgo nor Morelos nor Arriago succeeded in enforcing their agrarian principles. The indigenous and rural population continued being excluded and at the beginning of the 20th century, their situation had become even worse compared to the colonial era.72 However, in 1910, after 400 years of exclusion and oppression, the wretched should take history in their hands. Finally.

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Margadant Spamjaerdt (2007) p. 174; Silva Herzog (1973) p. 16 and 20 f. Hegel (1986) p. 130, 134 71 Díaz de León (2002) p. 80 ff.; Calva (1993) p. 30.; Hale (1965) p. 212. 72 Manzanilla-Schaffer (2004) p. 419, 421. 70

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V.

Mexican Revolution and revolutionary agrarian law

THE REVOLUTION AND THE CONSTITUTION OF 1917 It was exactly the unjust distribution of land which, in 1910, gave rise to the Mexican Revolution. Even if it was initiated by a political conflict about the presidential elections, the deeper reason and shaping element of the revolution was the agrarian question.73 Already the Plan of San Luis Potosí, political document of 5 October 1910, written for the most part by Francisco Madero, revolutionary and president from 1911 to 1913, implied an agrarian program in article 3, which prescribed the restitution of land to small land owners, in particular indigenous people and their compensation for all harm suffered in connection with dispossession.74 Because they believed in Madero’s agrarian program, peasants joined the revolutionary movement and became a central part of it under the leadership of Pancho Villa and Emiliano Zapata.75 However, Madero and Zapata pursued different solutions to the agrarian problem.76 Madero wanted to realize restitution by buying land from large land holdings, distributing it and creating small properties on the legal basis of private property.77 The Zapatistas went much further and broke more radically with earlier legislation.78 Their program was laid down in the Plan of Ayala of 28 November 1911. A central demand was the elimination of large land holdings.79 Apart from restitution, this plan provided for expropriation of the third part of large land holdings against indemnification and concession of this land to centres of population as means of existence. The land of those who opposed the execution of this plan should be nationalized entirely and without indemnification.80 Furthermore, property of rural communities should be (re-)established as communal property in accordance with the pre-hispanic model of the calpulli81

73

Silva Herzog (1973) p. 140 ff.; Manzanilla-Schaffer (2004) p. 427 ff, 444 f. Silva Herzog (1973) p. 152; Manzanilla-Schaffer (2004) p. 427. The Plan of San Luis Potosí is printed in Silva Herzog (1973) p. 157 ff. 75 Silva Herzog (1973) p. 153.; Manzanilla-Schaffer (2004) p. 441 f., 444.; Chávez Padrón (2005) p. 253 f. 76 After Madero’s death, three different revolutionary agrarian programs can be distinguished: the already explained program of Zapata, the program of Carranza and of Villa, see ManzanillaSchaffer (2004) p. 455 ff., in particular 461 and 468. 77 Manzanilla-Schaffer (2004) p. 430 ff. 78 Chávez Padrón (2005) p. 257. 79 Silva Herzog (1973) p. 7; Ruiz Massieu (1987) p. 19 f. 80 Manzanilla-Schaffer (2004) p. 433 f.; Silva Herzog (1973) p. 259 ff.; Chávez Padrón (2005) p. 258 f. The Plan of Ayala is printed in Silva Herzog (1973) p. 286 ff. 81 Chávez Padrón (2005) p. 155. 74

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and maintained by keeping it outside of free commerce.82 These objectives were reflected in the famous revolutionary slogans “Land belongs to those who work it!” and “Land and Freedom!” The objectives of the Plan of Ayala became legally manifest in article 27 of the revolutionary Constitution of 1917.83 The most important rules of this article were the following: According to its first paragraph, land and water within Mexican territory originally belong to the nation which is entitled to transfer dominio and thereby create private property. This means that private property is deemed to derive from the nation.84 Another consequence from this rule is that there is no vacant land any more which could be occupied and subject to “original acquisition”.85 The third paragraph entitles the nation to determine the modalities (modalidades86) of private property in accordance with public interest and to regulate the exploitation of natural resources in order to create an equitable distribution. For this purpose, the nation shall fragment huge land holdings and create new centres of population. All villages and communities which do not have sufficient land or water are entitled to get the necessary quantity to satisfy their needs. Also new agricultural centres of population can be formed and provided with sufficient land and water. Land shall be taken from huge land holdings which exceed a certain maximum of extension. In accordance with this maximum, the respective land shall be divided, expropriated (against indemnification, article 27 paragraph 2, part VII paragraph 5) and redistributed to centres of population in form of communal property. Furthermore, any proceedings, arrangements, resolutions and transactions with which villages, centres of population or other communities were deprived of their land or water are declared as null and void. The respective land shall be restored as communal property (article 27 part VII paragraph 3). In addition to the provisions about redistribution and restoration, communal property is expressly re-established by article 27 part VI and characterized as not transferrable (article 27 part VII paragraph 3). In order to protect sovereignty and integrity of national territories, only native Mexicans and Mexican companies are entitled to acquire land. Foreigners need a special permission from the Ministry of Foreign Affairs (article 27 part I). Joint stock companies (sociedades por acciones) can neither possess nor administrate rural land (article 27 part IV). 82

Calva (1993) p. 20 f.; Manzanilla-Schaffer (2004) p. 461 ff. The Plan of Ayala was an important basis for this article, see Chávez Padrón (2005) p. 256; Calva (1993) p. 21; Manzanilla-Schaffer (2004) p. 437, 468. 84 Chávez Padrón (2005) p. 322 85 Diccionario Jurídico Mexicano VI (1984) p. 300 (Ocupación de cosas). 86 There is a lot of discussion about the significance of this term, see for example Ruiz Massieu (1987) p. 215 ff. and Chávez Padrón (2005) p. 297 ff. 83

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Contrary to the War of Independence and the legal order of independent Mexico, the Mexican Revolution and the revolutionary Constitution of 1917 were not shaped by a small powerful upper class but by the pueblo, those from below, who were breaking with 400 years of marginalization and submission. One of the central leaders, Emiliano Zapata, was an illiterate peasant himself. Therefore, the Mexican Revolution is considered as the “true expression of the people” (Aguirre Rojas87) and of the “eternally exploited” (Manzanilla-Schaffer88). Octavio Paz argues that the Mexican Revolution implies a “revelation of the Mexican being” because it was an event that did not adopt an already given foreign program but evolved from “the own ground”.89 Similarly, also in the legislative material we find the argument that the Mexican Revolution was a counter-movement against the imposition of foreign legal concepts. The respective part of the documents of the constitutional congress of 1917 reads as follows: “Some years more of dictatorship would have produced the total extinction of the small properties and the communal properties. This would have been the natural effect of having adopted European legislation without distinction. Fortunately, the instinct of the lower classes brought forth the Revolution. […] The Nation has lived with the disorder produced by the mistake of adopting foreign legislation […] and now it will be necessary to repair this mistake, so that this disorder comes to an end.”90

PROPERTY LAW AFTER THE REVOLUTION Based on article 27 of the Constitution of 1917, a new regime of land property evolved: the so-called social property represented by ejidos and comunidades, both peasant communities which use and cultivate a certain plot of land in common.91 Contrary to the individualistic concept of property in the Constitution of 1857, the Constitution of 1917 establishes property in land as a social guaranty,92 not transferrable,93 with a “social function”94 and partly in accordance with pre-hispanic models.95 On the basis thereon, various decrees, laws and agrarian codes introduced mechanisms to protect and strengthen social property, in particular by making it inalienable, precluding it from prescription and

87

Aguierre Rojas (2002) p. 14. Manzanilla-Schaffers (2004) p. 420. 89 Paz (2007) p. 279 ff. 90 Printed in Calva (1993) p. 38 f., translated by the author. 91 Ruiz Massieu (1987) p. 20. 92 Chávez Padrón (2005) p. 294. 93 Article 27 paragraph 6 of the Constitution of 1917. 94 Ruiz Massieu (1987) p. 210 ff.; López Betancourt (2007) p. 110 f.; Chávez Padrón (2005) p. 295 f. 95 Chávez Padrón (2005) p. 295 f. 88

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prohibiting the transfer of the right to exploit the land.96 Another characteristic of social property of revolutionary agrarian law is the obligation of the entitled person to cultivate the respective land directly and personally.97 All these rules should guarantee that the land belonged to those who cultivated it and put an end to the exploitation of peasants as agricultural workers. Within social property we distinguish ejidos and comunidades. The ejidal regime is applicable to property which was redistributed to centres of population in accordance with article 27 paragraph 3 of the Constitution of 1917. Comunidades, on the contrary, are communities with a prehispanic origin whose property was acknowledged by the means of restitution and confirmation according to article 27 paragraph 1 of the Constitution.98 Legal literature defines ejidos as associations of social interest with legal personality. They are formed by Mexican-born peasants with a social patrimony of land, wood and water which is given to them gratuitously by the state as (inalienable) social property. Its administration is based on cooperation and economic democracy. The objective of an ejido is to exploit and make use of the natural resources by personal work of its members who are called ejidatarios.99 A comunidad is also a centre of population and productive unit with legal personality. It is administered by organs of decision, execution and control on the basis of democracy, cooperation and autonomy in accordance with indigenous traditions and costumes. Like ejidal property, communal property cannot be alienated nor transferred nor mortgaged nor can it be subject to prescription. The legal regime of the comunidades has prehispanic antecedents. The members of a comunidad are called comuneros.100 A lot of legislation was adopted in order to regulate this agrarian structure and land distribution in substance as well as in procedural, institutional or financial matters. This legislation gave birth to a new branch of law: revolutionary agrarian law which is considered to be one of the most authentic parts of Mexican law. Ruiz Massieu, for example, says: “One of the most authentic parts of Mexican law is without doubt the new agrarian law which evolved from the Constitution of 1917 as an immediate product of the revolutionary movement which put an end to the era of Porfirio Díaz, even if it has vestiges even more 96

Díaz de León (2002) p. 346 ff.; González Navarro (2007) 165. See article 117 of the Agrarian Code of 1934, article 119 of the Agrarian Code of 1940; article 138 of the Agrarian Code of 1942; article 52 of the Federal Act on Agrarian Reform of 1971. 97 Article 140 part II of the Agrarian Code 1934; article 123 of the Agrarian Code 1940; article 54 part III and article 169 of the Agrarian Code 1942; article 200 part III and article 85 part 1 of the Federal Law of Agrarian Reform of 1971. 98 Ruiz Massieu (1987) p. 235; González Navarro (2007) p. 164. 99 Ruiz Massieu (1987) p. 235 f. 100 Ruiz Massieu (1987) p. 236 f.

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antique.”101 He considers the concept of social property as an answer to 19th century individualism.102 Similarly, Chávez Padrón argues that the concept of social property is “a doctrine out of question ours, originally, which emerges from the national consciousness”.103 Notably, social property did not eliminate private property in land. Article 27 of the Constitution of 1917 is deemed as the basis of both types104 and the civil law rules on private property did not significantly change after 1917. They are included in the Federal Civil Code 1928 which is very similar to the Code of 1870.105 According to the classical concept of private law, article 830 of the Federal Civil Code stipulates that the owner can enjoy his property and dispose with it in accordance with the limits set forth in law and article 831 rules that the property must not be occupied against the will of its owner, except for reasons of public utility and for indemnification.106 Private property forms part of private law. This category corresponds to the typical Roman law categorisation and classical European legal differentiation between public and private law. According to this distinction, private law deals with relations between individuals whereas public law deals with relations between individuals and the state as a sovereign. Mexican social property and agrarian law break with this dichotomy. They form part of a third category which is called social law (derecho social).107 According to legal doctrine, social law deals with relations between different social groups and above all with the interests of those who need specific protection. Its rules are considered to affect not only the individual but the sociocolectivo.108 Another important part of social law is labour law which also originates from the Mexican Revolution. Its basic article 123 of the Constitution of 1917 was a result of the workers’ movements and collective actions during the Revolution. It sets forth basic labour rights such as an eight-hour-working-day or the prohibition of child labour.109 By establishing the category “social law” as a common category for agrarian and labour law, Mexican legal doctrine acknowledges and emphasises their revolutionary background, their history of class struggles and their social relevance. The different classifications do not only have formal significance. Private property in Roman law tradition and in accordance with liberalism of the 19th 101

Ruiz Massieu (1987) p. 19, translated by the author. Ruiz Massieu (1987) p. 214. 103 Chávez Padrón (2005) p. 296. 104 Chávez Padrón (2005) p. 296 f. 105 See above, IV. 106 Azúa Reyes (2004) p. 56 f. 107 Chávez Padrón (2005) p. 295; López Betancourt (2007) p. 108. 108 González Navarro (2007) p. 17 f., Rivera Rodríguez (1999) p. 4 f. 109 López Betancourt (2007) p. 101 ff. 102

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century is formed as an absolute individual right of an individual towards a certain object. As described above, traditionally, this concept does not take into account those who are excluded from the property.110 Social property, on the contrary, is supposed to fulfil a “social function”.111 It is not an individualistic but a social concept,112 which means that it does not focus on individuals and their individual rights but on social groups, collectives and their collective needs. Social property is characterized both by limitations (e.g. the prohibition to sell or lease the land) and obligations of the proprietor (e.g. the obligation to cultivate the land).113

VI.

Agrarian reform of 1992

LEGAL CHANGES Since 1917, many modifications to agrarian law have been made,114 but the most drastic and controversial reform was the reform of 1992 which was initiated by President Salinas de Gortari who presented it as modernization, which would grant the peasants justice and the freedom to decide for themselves which form of production and organization they prefer.115 Literally, the legislative initiative says: “[…] [The reform has] the objective to give more justice and freedom to the Mexican peasant. More justice because it advances productive opportunities and opens the possibility that the peasants have access to good income and more freedom because it allows the peasant to choose the form of production and organisation which is most appropriate for him under the judicial regime applicable to all Mexicans [which means the private law regime].”116 The reform of 1992 introduced a model of agrarian development which should improve efficiency by exposing the Mexican agrarian sector to international trade and competition. The Mexican government wanted to attract foreign capital and technologies, give Mexican producers the opportunity to benefit from the US-market and make the Mexican population benefit from cheaper products.117 The reform was drafted during the NAFTA negotiations and

110

See also Ruiz Massieu (1987) p. 226 f. Ruiz Massieu (1987) p. 205 ff.; López Betancourt (2007) p. 110 f.; Chávez Padrón (2005) p. 295 f. 112 Ruiz Massieu (1987) p. 205 f., 209. 113 Ruiz Massieu (1987) p. 206, 208 f., 210, 227. 114 An overview gives Chávez Padrón (2005) p. 302 ff. 115 Rivera Rodríguez (1994) p. 119 ff.; Díaz de León (2002) p. 870 f.; Chávez Padrón (2005) p. 307; Godoy Cortés, La Jornada del Campo 14.8.2008, p. 3. 116 The initiative is printed in Díaz de León (2002) p. 871, translated by the author. 117 Díaz de León (2002) p. 868 ff. 111

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strongly influenced by guidelines of the World Bank and the US. Details in this respect will be elaborated below. On the legislative level, the reform of 1992 implied a change of article 27 of the Constitution and a new Agrarian Act (Ley Agraria of 1992, LA). The idea that ejidatarios and comuneros should be free to choose the appropriate conditions of production and organization was laid down as a constitutional principle.118 The most important changes in property law were the following: One of the most criticized parts was that the reform put an end to redistribution. Hence, it is not possible any more to fragment huge land holdings for the benefit of centres of population lacking sufficient land and water.119 Another important change refers to the possibility to transfer social property. Prior to the reform of 1992, the agrarian property regime was dominated by the idea that the allocation of land which resulted from the revolutionary redistribution should be maintained and protected. In accordance with this idea and with the former article 27 of the Constitution, the Federal Act on Agrarian Reform of 1971 (Ley Federal de Reforma Agraria, LFRA) in its part “Property regime of ejidal and communal land” laid down the following rules: According to article 52 LFRA, any cultivable land, even if given to an individual ejidatario, always remained property of the ejidal centre of population. Ejidal and communal rights could not be alienated nor transferred nor leased nor mortgaged. Any operations and contracts infringing this rule were null and void. Also article 55 LFRA prohibited lease contracts and any other contracts which would transfer the right to exploit ejidal or communal land to a third person. The reform of 1992 set aside these rules by implementing the following provisions: Firstly, articles 45 and 79 of the LA allow contracts which assign the right to exploit ejidal land to third persons. Such contracts may be concluded by ejidatarios for their plots of land and by the ejidal assembly for land in common use. Secondly, according to the new law, ejidatarios are entitled to transfer their titles in parcels to other members of the ejido (article 27 part VII paragraph 4 of the new Constitution, article 80 LA). By transferring his ejidal rights, the assignor loses his position as ejidatario (article 20 LA). Thirdly, in accordance with article 46 LA, the right of usufruct in ejidal land can be mortgaged. Hence, ejidos can now enter the market of commercial loans whereas earlier, they had access only to special public loans. Fourthly, article 48 LA provides for a prescription of ejidal parcels. Accordingly, it is possible to acquire ejidal land by uninterrupted possession over a long period (five years in case of good faith and ten years in case of bad faith).

118 119

See art. 27 part VII para 4 of the Constitution (after 1992). Rivera Rodríguez (1994) p. 81 f., 84.

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Moreover, the reform allows the disincorporation of ejidal parcels from the social property regime in order to incorporate them into the private property regime. Such a change of the applicable regime requires a resolution of the ejidal assembly according to which the respective ejidatario shall get full property of his ejidal land. After such a resolution, the respective ejidatario is entitled to adopt dominio pleno of his parcel. By these means, the property becomes private property and the ejidatario private owner of the respective land (article 82 LA). Typically, this process has the objective to sell the land to third persons.120 Another important aspect of the reform is that prior to 1992, commercial joint stock companies (sociedades por acciones) could not acquire nor possess nor administer agricultural land. The reform put an end to this prohibition (article 27 part IV of the new Constitution). These changes are accompanied by land certification programs which according to the legislator shall give legal certainty: Procede and Procecom.121 On the basis of these programs, certificates for parcels and rights of common use are issued in order to provide legal certainty, facilitate legal dispositions and activate foreign investment. The reasoning of the law, given by the Procuraduría Agraria122 explicitly says: “The principal object of the Program is to give legal certainty to the tenure of the land by issuing certificates for parcels and certificates for rights of common use. […] Knowing precisely what belongs to every peasant makes possible a larger presence of investments in the agrarian sector, as well as in other activities related to the agrarian centres, such as forests, tourism, urban development, etc; furthermore, the documents of Procede facilitate the free conclusion of contracts of association, rent or lease.” Considering the changes and justifications of the reform of 1992, it is clear that the common objective was to transform agrarian land, until then excluded from the free market, into a commodity subject to the freedoms of private law and to attract national and international investment. The ideological basis thereof was the idea about efficient production and about advantages of free markets and international competition.

SOCIAL EFFECTS The new property regime of 1992 causes the following problems: As to the termination of land redistribution it must be considered that the creation of a just distribution of land in accordance with the revolutionary

120

López Nogales, A. and López Nogales, R. (2008) p. 168. Programa de Certificación de Derechos Ejidales y Solares Urbanos; Programa de Certificación de Derechos Comunales. 122 www.pa.gob.mx/Procede/info_procede.htm 121

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Constitution was still a “work in progress” in 1992. Although the respective legal rules had been laid down immediately after the Revolution in 1917, the realization of the revolutionary redistribution program was partly impossible because of the economic and political power of huge land owners. This applies above all to the south of Mexico and here in particular to the state of Chiapas, where in 1992, huge land holdings on the one hand and landlessness of peasants and indigenous people on the other hand still constituted one of the biggest social problems.123 Another problem arises from the economic pressure caused by the liberalisation of the agrarian sector in accordance with NAFTA, because Mexican products cannot compete with products from the US which are highly subsidised by the state and produced in big farms with much higher productivity. Also the recently passed US Farm Bill continues to greatly subsidise agrarian products,124 although the disastrous effects of these politics on poorer countries are known and have already provoked disputes in the WTO.125 Low education, lack of business experience and the growing economic pressure make the bargaining power of the rural population very weak. The results are extremely unfair sale and purchase or lease contracts.126 Moreover, interested buyers, partly together with local authorities, sometimes put strong pressure on the rural population to sell their land.127 Furthermore, cases of fraudulent behaviour of private investors and public authorities with regard to limitation, certification and estimation of the land’s value have been reported.128 Moreover, critics argue that the reform produces new concentration of land and puts an end to territorial sovereignty because it enables foreign companies and Mexican companies with foreign shareholders to control large land holdings.129 123

Kerkeling (2006) p. 102 ff.; Aguierre Rojas (2002) p. 15; De Ita (2003) p. 24, 27 f. Further details below, VII. 124 Hernández Navarro, La Jornada 15.7.2008 p. 15, criticizes the impacts on the Mexican agrarian market. 125 See for example the case US – Subsidies on Upland Cotton, WTO Doc. WT/DS267; regarding Mexican peasants see Kaufmann, Berliner Zeitung 8.9.2003, published in the online-archive berlinonline.de/berliner-zeitung/archiv/.bin/dump.fcgi/2003/0908/wirtschaft/0046/index. html 126 See for example the contracts between the ejido El Quince and the enterprise Coppel in Sinaloa, reported in La Jornada, 8.12.2008, p. 40 and 9.12.2008 p. 38 or between ejidatarios of Tehuantepec and Spanish enterprises in Oaxaca, La Jornada 6.11.2008, p. 19. 127 See for example the case of the comunidad Santa Rosa Jáuregui in Queretaro, La Jornada 8.8.2008; the dispute between the ejido El Quince and the enterprise Coppel, La Jornada, 8.12.2008, p. 40 and 9.12.2008 p. 38.; the dispute about an archeological zone in Zapatista territory, La Jornada 4.11.2008; the pressures of the government of the state of Hidalgo against the ejidatarios of La Llano to sell land in order to construct a new refinery, La Jornada 15.6.2009. 128 See for example the dispute between the ejido El Quince and the enterprise Coppel, La Jornada, 8.12.2008, p. 40 and 9.12.2008 p. 38. 129 Critique of the Mexican parliamentary opposition (Partido de la Revolución Democrática) in Gaceta Parlamentaria of 16th June 2000, p. 4 f.; Calva (1993) p. 81: “latifundios modernos”.

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The constitutional limit of the extension hold by one company only formally prevents such large land holdings because it can be circumvented by a company controlling a vast number of subsidiaries.130 In order to understand the importance of these problems and their cultural and historical impact, it must be considered that in Mexico, from the colonization onwards, huge land holdings have always been a manifestation of dominance, often connected with violence and in the hands of foreigners. Orozco describes this problem in the end of the 19th century as follows: “The conduct of the large land holders reveals until today that under the colonial regime owner was synonymous with victor and property synonymous with violence.”131 Another problem is that the division of land into parcels and individual certification implies the individualisation not only of land property but also of various risks which used to be carried by the communities, such as financial risks of taking credits or of initiating legal disputes.132 Furthermore, the division results in the erosion of systems of organization responsible for the exploitation and protection of natural resources and social security.133 These problems were the main reasons for the social protest against the reform, in particular of the Zapatista uprising in Chiapas. In order to understand the international impact of this uprising, it is necessary to see the international dimension of the reform itself. Therefore, the reform shall now be elaborated with reference to its international legal background before we finally turn to the Zapatista movement and its postcolonial qualities.

IMPERIAL LAW AND THIRD GLOBALIZATION The agrarian reform formed part of the neoliberal politics of Salinas which had begun in the 1980s. These politics had found great support of the IMF which made financial assistance contingent upon the continuation of liberal economic politics.134 With regard to the agrarian reform, the World Bank played a central role. Actually, main points of the reform, for example the transferability of social property, correspond exactly to the recommendations of a working paper of the World Bank which was drafted in 1990.135 Loans given to the agrarian sector

130

See the critique of the Mexican parliamentary opposition (Partido de la Revolución Democrática) in Gaceta Parlamentaria of 16th of June 2000, p. 4 f. 131 Wistano Luis Orozco, quoted in Manzanilla-Schaffer (2004) p. 397; see also ManzanillaSchaffer (2004) p. 398. 132 De Ita (2003) p. 10; Vera Herrera, Ojarasca 86, La Jornada, 14.6.2004. 133 Godoy Cortés, La Jornada del Campo, 14.8.2008, p. 3; as to the protection of forests by ejidos and comunidades see Madrid, ibid., p. 14. 134 HarvLRev (1995) p. 1927. 135 World Bank Working Paper, elaborated by Heath (1990), p. 7 f., 57 f.; Calva (1993) p. 73 ff.

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where conditioned accordingly.136 Furthermore, the privatization of agrarian land was demanded by the US in course of the NAFTA negotiations.137 This influence becomes particularly important if we consider the role which Mexico played for the US, the World Bank and the IMF at that time: a model for the rest of the continent. It was supposed to be the first Latin American country which should enter the so-called First World by adopting neoliberal politics. Thereby it was supposed to prove the success of these politics and their utopia of progress.138 Because of this background, the agrarian reform of 1992 can be considered as the result of a typical example of a certain type of international legal influence: influence by the use of public international law and the creation of transnational consensus (for example in state treaties) which are particularly applied in development programs.139 Miller has pointed out that the role played by any single developing country in the development of an international treaty is typically so minor that one can reasonably evaluate the domestic incorporation of such a treaty as a legal transplant.140 Referring to this pattern, we could speak about “bargained transplants” (or bargained transfers141) which, according to Mattei, result from the creation of consensus by persuading the powers of the targeted country. Typically, this process happens in so-called developing countries which implement Western standards or concepts in order to enter the international market. According to Mattei, this has become “the most important way in which the World Bank, International Monetary Fund, World Trade Organization, and European Union operate through the developing and former socialist world.”142 “Bargained” in this context does not mean that the legal program is received by “free will”, because depending on military and economic power, there are states which are freer than others.143 Hence, a legal transfer which formally results from a “bargain” may, actually, be “externally dictated” in the sense of Miller who also argues that externally dictated transplants have 136

Calva (1993) p. 74 f. Calva (1993) p. 76 ff. 138 Noam Chomsky in an interview with the Mexican newspaper La Jornada in 1994, partly published in Manzanilla-Schaffer (2004) p. 863; Volpi (2004) p. 138. 139 Miller (2003) p. 841. 140 Miller (2003) p. 847 ff. 141 Maybe the term “transplant” is not really adequate in this context as it evokes the idea of reception of a certain legal institute. This is not the place for discussing the term “legal transplant” in general. A lot has been written about this question and a lot of other terms have been proposed. See for example Watson (1974, 2nd edition 1994), (1977); Legrand (1997); Lopez Medina (2004); Twining (2006); Teubner (1998); Kennedy (2006). Here it is enough to say that the notions of “legal transfer” or “legal influence” seem to be broader and more adequate for the international influence of the mentioned actors on national legal systems. 142 Mattei (2003) p. 388. 143 Mattei (2003) p. 389. 137

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become “a ubiquitous force” in developing countries and include all transfers motivated by a desire to please foreign states or entities whereas the US, the World Bank, the IMF and the WTO play a central role.144 These actors also played an active role in the privatization of Mexican agrarian land. The influential legal system, this time, was not the national legal system of another country (Spain, France) but the omnipresent “non-territorial order”145 which is organized, structured and shaped by the World Bank, the IMF, the WTO and the group of the G8 with the US in an exceptional position.146 Mattei refers to this dominating legal order as “imperial law”147 characterizing it as “produced, in the interest of international capital, by a variety of both public and private institutions, all sharing a gap in legitimacy.” Imperial law is the “product of a renowned alliance between state and economic institutions, a cooperative game in which a very limited number of powerful players are at play.”148 It has US law at its core,149 subordinates local legal arrangements and imposes its own fundamental principles world-wide.150 The shift of external influence from Europe to the US corresponds to the shift of global powers and the rearrangement of the international legal order during the second half of the 20th century. Today’s external influence in national legislation of so called developing and threshold countries is significantly shaped by this new order.151 The respective legal reforms are often presented as modernization and imply the opening of markets, investors’ rights and privatization. These processes form part of what Duncan Kennedy calls the “Third Globalization”152 which is characterized by the notion of human rights and nondiscrimination whereby the non-discrimination discourse is also used in international economic law where property ownership is transformed into an identity which must be protected against discrimination.153 Miller considers the “prestige” of liberal economic structures promoted as the “Washington Consensus” as a further important factor which gave rise to the implementation of US legal models in many Latin American states throughout the

144

Miller (2003) p. 847. Mattei (2003) p. 413. 146 For further legal changes in accordance with neoliberal principles and impacts of these politics in Mexico see Manzanilla-Schaffer (2004) p. 853 ff. 147 Mattei (2003) p. 383 ff. 148 Mattei (2003) p. 386. 149 Mattei (2003) p. 384. 150 Mattei (2003) p. 383, 401 f. 151 With particular reference to the US Mattei (2003) p. 384.; Mattei (1994) p. 205 ff. 152 Kennedy (2006) p. 63 ff. 153 Kennedy (2006) p. 67. 145

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Nineties.154 This might also be true for Mexican agrarian law. However, the prestige itself is a result of a hegemonic process of US law155 and therefore also forms part of the functioning of imperial law. Another aspect seems to be noteworthy in this context: Prestige of a legal principle implies legitimating power for those who adopt it. Salinas had emanated as president from the elections of 1988 which were heavily criticised as fraudulent. Therefore, it appears reasonable that he was seeking legitimating powers both within his country as on an international level and that he tried to get such power from hegemonic legal models and principles which (at least at that time) were connected with the glamorous promises of progress and modernization. This aspect shows that even if there is strong external influence this does not mean that only external powers enforce the process of legal transfer. National actors also can play an important active role. Besides the already mentioned legitimating effect of prestigious models, they can support the adoption of foreign principles because of personal interest and profit, local pressure groups, prestige, influence of national legal practitioners or academics,156 or because they are, actually, persuaded that what they are doing is the best for their country. All of these factors might have influenced the Mexican agrarian reform of 1992. Furthermore, it seems that the social and cultural imprint of the central actors, president Salinas de Gortari and his economic counsels were much closer to US elites than to Mexican rural and indigenous communities. They had also lived and been educated in the US.157 This is another aspect of the hegemonic power of US law: the attraction of lawyers from almost all over the world to enjoy legal education in one of the US elite law schools.158 Hence, the Mexican example confirms that American legal hegemony works above all by changing legal consciousness and promoting its legal principles as a universal synonym of progress.159 However, the problems of the Mexican agrarian sector of today show that privatization, private investment and free trade in the periphery, actually, mean exclusion and poverty for many people. For these reasons the necessity of re-negotiating NAFTA is intensively discussed

154

Miller (2003) p. 871. Regarding this process see Mattei (2003) p. 384 ff. 156 Personal profits directed at the facilitator of the transplantation are characteristics of what Miller calls „entrepreneurial transplants“, see Miller (2003) p. 849 ff. The exporting entities may also operate on more levels, for example when an international financial institution conditions a loan on adoption of a law and also offers development grants to train lawyers in the new law, see Miller (2003) p. 854. 157 Manzanilla-Schaffer (2004) p. 862, 866 f., 464; Volpi (2004) p. 121, 123. 158 Mattei (2003) 391 and (1994) p. 207. 159 See Mattei (2003) p. 407 f. 155

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today.160 The negative effects of NAFTA and the agrarian reform also provoked intense social protests. One of these protests attracted particular attention not only in Mexico but also in the rest of the world: the Zapatista rebellion.

VII. The Zapatista rebellion CHRONOLOGY The Zapatista rebellion emerged in Chiapas, in spite of its natural resources one of the poorest states of Mexico161 with a high proportion of indigenous people suffering from marginalization, exclusion, racism, malnutrition, illiteracy and insufficient medical care.162 Land distribution has always been one of the severest problems and due to a very strong local oligarchy of large land holders the revolutionary redistribution program could hardly be implemented in Chiapas. It is argued that the Mexican Revolution never really arrived in this state.163 Hence, in 1992 when the new agrarian reform entered into force and put an end to the legal possibility of redistribution, the rural area of Chiapas was still characterized by an impoverished and landless rural population on the one hand and huge land holdings of a small oligarchy on the other hand.164 Most of the huge land holders had acquired land under the liberal legislation during the second half of the 19th century (often by illegal means and dispossessions of the rural population).165 Therefore, it is no surprise that the most radical and politically influential counter movement against NAFTA and the neoliberal agrarian reform emerged in this forgotten place of Mexico. On the 1st January of 1994 Chiapas attracted attention not only in but also outside of Mexico: Exactly on the day when NAFTA entered into force, an armed group of indigenous people appeared from the night of the Lacandon jungle, occupied the city hall of San Cristóbal (one of the bigger cities in Chiapas), presented themselves as the Ejercito Zapatista de Liberación Nacional: the Zapatista Army of National Liberation (EZLN)166 and made public a declaration with the words “Hoy decimos ¡Basta!”167 160

La Jornada 26.3.09, p. 45; 17.3.2009, p. 2; 13.3.2009, p. 43; 19.2.2009, p. 8; 17.1.2009, p. 14; 21.12.2008, p. 13; 14.12.2008, p. 8; 2.12.2008, p. 13; 25.11.2008. 161 Kerkeling (2006) p. 117 f.; see also the article published in La Jornada of 5th January 1994, reprinted in Volpi (2004) p. 49 f. 162 Kerkeling (2006) p. 115 f. 163 Kerkeling (2006) p. 102 ff.; Aguierre Rojas (2002) p. 15 f.; De Ita (2003) p. 24, 27 f.; Volpi (2004) p. 95 ff.: “Zapata no pasó por aquí”. 164 Kerkeling (2006) p. 102 ff.; Aguierre Rojas (2002) p. 15. 165 Kerkeling (2006) p. 100. 166 Muñoz Ramírez (2003) p. 85 ff.; Kerkeling (2006) p. 159 ff. 167 “Today we say: It is enough!”, Primera Declaración de la Selva Lacandona, in Marcos (2001) p. 13.

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Where did this group come from? The roots of the EZLN are peasant and indigenous movements which started to organize themselves in the seventies. Under the influence of leftwing social movements, liberation theology, the experience of indigenous self organization and the indigenous congress of 1974, these movements acquired a strong political consciousness and started to analyze their difficult living conditions in a historical and global context. From their beginning they were subject to strong state repression.168 In the eighties, the more radical parts of these movements organised themselves in the Lacandon jungle in form of a guerrilla group and created a network with various indigenous communities. After a few years the networks became stronger and the guerrillas adopted indigenous principles of selforganization such as the principle of consensus-based decision finding and governing. Guerrillas and indigenous communities got more and more mixed. From this process emanated the movement which appeared before the public on 1st January 1994 as EZLN.169 On 1st January 1994, from the balcony of the occupied city hall of San Cristóbal, they read out their “First Declaration of the Lacandon Jungle” which concluded their main demands: land, education, health, alimentation, independence, freedom, justice, democracy and peace.170 This day was followed by twelve days of civil war in Chiapas between the EZLN and the Mexican army. The EZLN continued occupying cities, entered state buildings and burnt documents, in particular land certificates.171 One of the most central slogans of these days were “Land and Freedom!” and “We don’t want free trade but freedom!”172 After twelve days, the Mexican government, under the pressure of movements of solidarity in- and outside of Mexico, pronounced ceasefire and started political negotiations with the EZLN (until today not successful).173 Since then, the EZLN has not undertaken any further military action. However, manifestations, protests, building up networks and political events are still going on.174 Messages and declarations, published in their journal called El Despertador Mexicano and above all on the internet, addressed to politicians, mass media and the civil society, have become one of their main political instruments.175 “Nuestra

168

Kerkeling (2006) p. 136 f.; Volpi (2004) p. 102 ff. Muñoz Ramírez (2003) p. 27 ff.; Kerkeling (2006) p. 141. 170 Primera Declaración de la Selva Lacandona, in Marcos (2001) p. 13, Muñoz (2003) p. 85 ff. 171 Muñoz Ramírez (2003) p. 85 ff.; Kerkeling (2006) p. 161. 172 Kerkeling (2006) p. 161. 173 Kerkeling (2006) p. 168, p. 174 ff; Muñoz Ramírez (2003) p. 92. 174 Kerkeling (2006) p. 168, p. 174 ff. 175 See http://palabra.ezln.org.mx/comunicados/; on the importance and the political influence of these declarations and messages see Volpi (2004) p. 25 ff; on the first messages Muñoz Ramírez (2003) p. 85 ff. 169

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arma es nuestra palabra” (Our weapon is our word) argues their spokesman, Subcomandante Marcos.176 In the meantime, the EZLN has established autonomous municipalities (municipios autónomos). Violent conflicts between Zapatista communities and state authorities, sometimes paramilitaries, are continuing.177

LEGAL ASPECTS One of their most important demands is the demand for land. The Zapatistas refuse the agrarian reform of 1992 and demand to rebuild the spirit of article 27 of the Constitution of 1917 as it was before.178 In accordance with this spirit, they have drafted their own Revolutionary Agrarian Act.179 This Act stipulates that all land, held as private property, which exceeds 50 hectare (if it is land of good quality) or 100 hectare (if it is land of bad quality) shall be expropriated and redistributed to peasants and rural workers without land (paragraphs 3, 4, 5). They shall receive the land as collective property and form cooperatives, peasant associations and collectives of agrarian production. Cultivation shall be organised in collective and concentrated on the production of alimentation which is necessary for the Mexican population, such as maize, beans, rice, etcetera (paragraphs 5 and 8). Only as far as the products are not needed for alimentation of the Mexican population, they can be exported (paragraph 10). Huge agriculture firms shall be expropriated, given to the Mexican population and administered collectively by those who actually work there (paragraph 11). In order to realize their agrarian project the EZLN occupied land,180 distributed it to collectives and established autonomous municipalities. These are indigenous communities which form part of the Zapatista movement and have declared their autonomy against the state authorities.181 Most of the municipalities have been given new names and partly also new boundaries by its members.182 The Revolutionary Agrarian Act mentioned above constitutes their legal basis of land distribution and agrarian production.183 The state has not recognized their 176

Marcos (2001). Kerkeling (2006) p. 123 ff., 204 ff., 223 ff. On the massacre of Acteal see Hernández Navarro and Vera Herrera (2004) p. 11 and for recent reports see La Jornada 1.11.2008, p. 17; 30.8.2008, p. 25; 11.1.2009, p. 12; 10.2.2009, p. 13; 27.2.2009, p. 20; 11.3.2009, p. 19; 23.4.2009, 21; 29.4.2009, p. 20. 178 Kerkeling (2006) p. 172. 179 Ley Agraria Revolucionaria, published in EL Despertador Mexicano, Organo Informativo del EZLN, México, No. 1, diciembre 1993, http://palabra.ezln.org.mx/comunicados/. 180 Kerkeling (2006) p. 174 f.; Villafuerte Solís et. al. (2002) p. 164 ff. 181 Kerkeling (2006) p. 179 f. 182 Kerkeling (2006) p. 182. 183 Kerkeling (2006) p. 179. 177

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autonomies. Nevertheless, in the meantime, autonomous structures have been realized in 38 municipalities184 which are co-ordinated by five centres of communication and logistics, so called caracoles.185 In these caracoles, Juntas de Buen Gobierno (Juntas of Good Government) have been established. Among other duties the Juntas de Buen Gobierno mediate conflicts between municipalities, hear complaints about the autonomous councils if they violate human rights, help with the realization of communitarian projects and make public human rights violations and other aggressions against Zapatista municipalities and adherents.186 The municipalities are financially independent from state authorities and have set up their own governmental structures as well as schools, hospitals, shops, libraries and forces of security.187 They partly act in accordance with their own laws and partly accept state law.188 Their autonomous legislation is published on internet and in their journal El Despertador Mexicano. Besides the Revolutionary Agrarian Act, they have issued for example the Revolutionary Women’s Act, Act on Urban Reforms, Labour Act, Act on Industry and Commerce, Act on Social Security and the Act of Justice.189 In 1995, the government and the EZLN started political negotiations under a commission of mediation in the village of San Andrés Larráinzar.190 Again, the problem of land was a key subject. The central demand of the Zapatistas was the following: “In order to bring a solution to the severe national agrarian problem a reform of article 27 of the General Constitution of the States of Mexico is necessary. This article must retake the spirit of the fight of Emiliano Zapata resumed in two basic demands: land belongs to those who work it, and land and freedom. This reform must contain the recommendation drafted by our delegation in course of the second phase of the negotiations. It must guarantee territorial integrity of the indigenous people, whereas ‘territory’ must be understood as the totality of the environment where they have settled. The integrity of ejidal and communal land. The incorporation of norms of the Convention 169 of the ILO191 in agrarian legislation. The access to land for women and men who lack of land by way of donation and extension. The fragmentation of huge land holdings in

184

In total, in Chiapas exist 111 municipalities, see Kerkeling (2006) p. 182 Kerkeling (2006) p. 179 ff., 190 ff., 242 ff.; Muñoz Ramírez (2003) p. 245 ff. 186 Muñoz Ramírez (2003) p. 247 f.; see the reference to notifications of the Juntas de Buen Gobierno in La Jornada 27.2.2009, p. 20; 23.4.2009, 21; 29.4.2009, p. 20. 187 Kerkeling (2006) p. 179 f., 242 f. 188 Kerkeling (2006) p. 181. 189 http://palabra.ezln.org.mx/comunicados/ 190 Kerkeling (2006) p. 193 f. 191 See articles 13 ff of C169 Indigenous and Tribal Peoples Convention of 1989 of the ILO, which protect collective and individual rights in land of indigenous people. 185

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order to satisfy the agrarian necessities and the prohibition for commercial companies and banks being proprietors of land.”192 On 16th February of 1996, the EZLN and the Mexican government signed the so-called agreement of San Andrés which deals with indigenous rights, culture and autonomy. The first paragraph (B.1.) of the Agreement of San Andrés refers to the problem of land and reads as follows: “The delegation of EZLN insists in pointing out the lack of solution for the grave national agrarian problem and in the necessity to reform article 27 of the Constitution, which has to take again the spirit of Emiliano Zapata, which may be resumed in two basic demands: ‘land belongs to those who work it’ and ‘land and freedom’.”193 However, until today the agreement has not been fully implemented in Mexican legislation, in particular not with the constitutional reform of 2001.194 The EZLN considers the establishment of autonomous municipalities as the realization de facto of the agreement.195 Since 2000, the government has legalized a few of the Zapatista occupations as private property. However, this does not correspond to the demands of the Zapatista communities who don’t want individual but collective rights to be recognized.196 Hence, the problem of land in Chiapas continues being unsolved and the Zapatistas continue fighting. They still attract public attention and have become a symbol of hope for leftwing activists. I will now analyze the EZLN as a postcolonial movement and – by considering the legal aspects of their rebellion in the historical and global context – develop cornerstones for a postcolonial legal perspective.

THE EZLN AS A POSTCOLONIAL MOVEMENT Meanings of “postcolonial” First, it is necessary to determine the meaning of “postcolonial”. Literally, “postcolonial” would mean anything that happened after colonialism. However, such understanding would neither make much sense nor imply critical potential. To be useful for a critical undertaking, the term shall be understood as identifying any theoretical critique or political practice that involves the reconsideration of

192

Comunicado of 15 February 1996: Diálogo de San Andrés y los Derechos y Cultura Indígena, http://palabra.ezln.org.mx/comunicados/ 193 Acuerdos de San Andres, in Hernández Navarro and Vera Herrera (2004) p. 53 f., translated by the author. 194 Hernández Navarro and Vera Herrera (2004); Kerkeling (2006) p. 193 f. 195 Kerkeling (2006) p. 191. 196 Kerkeling (2006) p. 176 f.

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colonial history and its contemporary social and cultural impact from the perspectives of those who suffer the effects. The postcolonial perspective makes connections between the colonial past and the present in order to develop resistance against colonial dominance and its descendents.197 It is a subaltern perspective of those who loose in global power structures. For the people in the west it shall amount to nothing less than a “world turned upside-down”.198 Taking a postcolonial perspective involves a change of location. If you look at modernity from England, for example, “you see only modernity and, in the shadow, the ‘bad things’ like slavery, exploitation, appropriation of land, all of which will supposedly be ‘corrected’ with the ‘advance of modernity’ and democracy”. From the Caribbean, on the contrary, “you see that modernity not only needed coloniality but that coloniality was and continues to be constitutive of modernity.”199 One of the best examples is probably Eduardo Galeano’s book Las venas abiertas de América Latina (The open veins of Latin America) which gives a profound and unmasking analysis of modernity from the perspective of Latin America. Already the first sentences comprise the core of the book and the core of postcolonial critique: “The international division of labour consists in this: Some countries specialize in winning and some others in losing. Our part of the world, the one we currently call Latin America, was precocious. So the minute Renaissance Europeans threw themselves across the seas to snap at our continent’s throat we all began specializing in losing. The centuries passed by and Latin America brought its functions to perfection. […] The region continues working as a servant. It continues existing to serve foreign necessities, as source and reserve of petroleum and iron, copper and meat, fruits and coffee, prime matters and alimentation with destinies in rich countries which as consumers gain al lot more than Latin America gains as producer.”200 Generally, the location from which postcolonialism as a political discourse is enunciated, are the three continents of the South which in order to avoid the hierarchical and Western centred impact of the notion of “Third World” should be referred to as the “tricontinental”. This term also marks an “identification with the […] Havana Tricontinental of 1966, which initiated the first global alliance of the peoples of the three continents against imperialism, and the founding moment of postcolonial theory in its journal, the Tricontinental.”201 However, the distinction between the continents of the south and of the north should not be taken in a

197

Young (2001) p. 4, 6; Mar Castro Varela and Dhawan (2005) p. 24. Young (2003) p. 114. 199 Mignolo (2007) p. 466. 200 Galeano (2006) p. 15 (translated by the author). 201 Young (2001) p. 4 f.; regarding this conference see also Young (2003) p. 17 and Young (2001) p. 212 f. 198

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monolithic sense. Migrants in Europe, for example, can also be considered as postcolonial subjects and, on the other hand, a huge land holder in Bolivia will not share the perspective of an indigenous peasant in the same country. Nevertheless, we can say that postcolonial struggles are principally located in the tricontinental. They are directed against Western interests that enforce the neo-colonial status as well as against the “internal colonialism” of postcolonial states; this means internal power structures directed by neo-colonial local elites.202 Based on this common orientation, postcolonialism can comprise multiple perspectives of different postcolonial subjects (migrants, indigenous, etc), multiple approaches and multiple activities. As postcolonialism refuses totalizing forms it neither assumes a uniform theoretical framework for itself.203 Also its origins are manifold and can be located both in political activism and theory such as the already mentioned Tricontinental of 1966 and in academic writings like Eduardo Galeano’s “The Open Veins of Latin America”, Frantz Fanon’s “The Wretched of the Earth” or Edward Said’s “Orientalism”. Typically, postcolonial politics are closely interrelated with postcolonial theory and vice versa. “This heterogeneity and conceptual fluidity” notwithstanding, the overall project of postcolonial critique remains coherent: Investigation of colonization and its continuing aftermath, identification of the means and causes of international dominance and exploitation, development of new forms of cultural and political production that enable successful resistance.204 The critique of colonialism and European modernity does not mean that postcolonialism wants to re-establish a pre-colonial or pre-modern society. Indigenous history, for example, is seen as a probable foundation but not as a utopian program. Neither does postcolonial critique reject the emancipative aspects of modernity but only the “irrational myth”205 of European superiority and of uniform development. The aim is liberation of the “wretched of the earth”206 who have been excluded from emancipation so far.207 One important aspect of their liberation is to break with universalism, not only western but with any form of universalism. The aim of postcolonialism is “pluri-versality as a uni-versal project”.208 This includes the rejection of the most fundamental belief of modernity: the belief in abstract universals,209 a belief particularly deeply rooted in western legal consciousness. 202

Young (2003) p. 109; Young (2001) p. 9, 58 ff. Young (2001) p. 64 f. 204 Young (2001) p. 69. 205 Dussel (1993) p. 75. 206 Fanon (2001). 207 See Mignolo (2007) p. 454 ff. 208 Mignolo (2007) p. 453, 463, 494, 498. 209 Mignolo (2007) p. 500. 203

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Postcolonial approaches of the EZLN The Zapatistas are an outstanding example of a postcolonial movement because of the strong historical and global dimension of their fight, a dimension which flashed on 1st January 1994 in their statement: “Somos producto de 500 años de luchas”.210 Thereby and in many other occasions, the Zapatistas have presented themselves as the descendants of the rural and indigenous people who have been oppressed, excluded, marginalized, exploited and violated since colonialism and who, after 500 years, all together say: “¡Ya basta!.”211 Vice versa, they see their opponents as the descendants of antecedent dominators. The politicians in power in 1994, they argue, “are the same as those who sold more than half of our land to foreign investors, are the same as those who brought European principles to govern us, the same as those who formed the dictatorship of Porfirio Díaz and his scientists, […]”.212 In Walter Benjamin’s words, the Spanish conquerors, the liberal reformers and the regime of Porfirio Díaz march “in the triumphal procession in which today’s rulers tread over those who are sprawled underfoot.”213 In particular, the EZLN link their movement to the revolutionary fight of Emiliano Zapata and his peasants which – considering actors, targets and demands – in fact can be deemed as a precursor of postcolonial struggles.214 This link is reflected not only in the name “Ejército Zapatista” but also in the First Declaration which expressly refers to Emiliano Zapata and Pancho Villa215 and in the preamble of the above mentioned Revolutionary Agrarian Law which literally says: “The fights of the poor peasants in Mexico continue demanding land for those who work it. After Emiliano Zapata and against the reforms of article 27 of the Mexican Constitution, the EZLN retakes the just fight of rural Mexico for land and freedom.” (translated by the author). Also with their central demands read out on 1st January 1994, namely land, work, housing, food, education, health, autonomy, freedom, democracy, justice and peace,216 they connect their fight to the revolutionary ideals, which have never become reality in Chiapas.217 Besides this historical dimension, the Zapatista rebellion also transcends the geographic location of its uprising by identifying the miserable living 210

“We are the product of 500 years of fighting!”, Primera Declaración de la Selva Lacandona, in Marcos (2001) p. 13. 211 “It is enough!” The reflection of this historical dimension in their symbols and rhetoric is analyzed by Volpi (2004) p. 61 ff., 112 f., 116 212 Primera Declaración de la Selva Lacandona, in Marcos (2001) p. 13. 213 Benjamin (1997) p. 696. 214 See also Young (2001) p. 196. 215 Primera Declaración de la Selva Lacandona, in Marcos (2001) p. 13. 216 Primera Declaración de la Selva Lacandona, in Marcos (2001) p. 15. 217 Aguierre Rojas (2002) p. 16 f.

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conditions of the Mexican indigenous and rural population as a product of the global economic order and its power structures.218 As to their first appearance in public, for example, they couldn’t have chosen a better day than the day when NAFTA, manifestation and symbol of international capitalistic politics, entered into force. They present Chiapas as a mirror of the capitalistic world order. On the basis of this cognition, they also try to link national and international strategic thinking.219 The global dimension of the movement is also emphasised by Aguirre Rojas who, based on Wallersteins World Systems Analysis, classifies the EZLN as an “anti-systemic movement”, a classification which is in accordance with the analysis of Marcos (spokesman of the EZLN).220 Accepting Wallersteins idea that it is impossible to change only one zone of a world system, Aguirre Rojas argues that the demands of the Zapatistas imply the abandonment of the current politics of privatization and neoliberalism imposed on the periphery by the global centre and local elites.221 This international impact may be one of the central reasons for which the message of the Zapatistas immediately was understood and supported by many people in Mexico and abroad who felt addressed although they come from realities very different from the Lacandon jungle. Already during the first days of the rebellion, in Mexico and many other countries manifestations of solidarity emerged222 and until today, the Zapatistas count with solidarity of different social movements on a national and international level.223 In the meantime, there have taken place several international conferences organised by the EZLN with the participation of (Zapatista and non Zapatista) indigenous communities, academics, intellectuals224 and social movements from all over the world.225 Their

218

This view is reflected in particular in a lecture of Subcomandante Marcos, Algunas tesis sobre la lucha antisistémica, given in a colloquium together with Immanuel Wallerstein and Carlos Antonio Aguirre Rojas on 13th December 2007; the lecture has been published on http://enlacezapatista.ezln.org.mx/comision-sexta/851. 219 See also Petras (1997) p. 37 f. 220 Lecture of Subcomandante Marcos, Algunas tesis sobre la lucha antisistémica, given in a colloquium together with Immanuel Wallerstein and Carlos Antonio Aguirre Rojas on 13th December 2007, published on http://enlacezapatista.ezln.org.mx/comision-sexta/851. 221 Aguirre Rojas (2002) p. 45, 48 f., 51 f. 222 Muñoz Ramírez (2003) p. 91. 223 See for example: www.chiapas.ch; www.chiapas.de; www.gruppe-basta.de; www.chiapas.at; chiapas.mediosindependientes.org/. 224 Regarding the relation between the EZLN and intellectuals see for example the contributions of academics and intellectuals in the Zapatista “Festival de la Digna Rabia”, reported in La Jornada 29.12.2008, p. 4; 4.1.2009, p. 7; 8.1.2009, p. 12; analysis of this phenomenon is given by Berger (2001) p. 149 ff. and Volpi (2004) p. 133: “It is no coincidence that so many intellectuals admire Subcomandante [Marcos]”.

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extraordinary international attraction is strengthened by an intense communication with the public by internet and radio programs,226 the rhetoric talents of their spokesman Marcos, the intellectual value of his messages227 and – as Aguirre Rojas argues – the fact that Chiapas is one of the places which most clearly shows the perverse effects of neoliberal capitalism and therefore serves as a prime example and symbol.228

VIII. A postcolonial legal perspective PERSPECTIVES OF THE EZLN The Zapatista rebellion also implies a strong critique of the global legal order and its influence on national legal systems. This is particularly true with regard to the agrarian question. By criticizing the privatization of land and the termination of re-distribution in the context of the colonial past, for example, they implicitly criticize the implementation of private law principles in social law and link this critique to the long history of private and social property as a history oscillating between domination and struggles for liberation. Private property is criticized as the legal basis of foreign domination. By explaining their legal demands with explicit references to the property regime of article 27 of the revolutionary Constitution of 1917,229 they present themselves as a continuation of earlier anticolonial demands. Furthermore, the Zapatista attack on privatization implies a critique of the traditional channels and forms of international legal transfer, in particular their one-dimensional way from the global centre to the periphery. This critique again must be considered against the history of these channels. The Zapatistas argue, for example, that those who sell their country today are the same as those who brought European principles to govern them.230 Moreover, they question the pretended universal and natural validity of western legal concepts, in particular

225

On the first of these events see Muñoz Ramírez (2003) p. 124 ff; on the most recent event, the “Festival de la Digna Rabia” see the reports in La Jornada, 27.12.2008, p. 11; 29.12.2008, p. 4; 31.12.2008, p. 9; 4.1.2009, p. 7 and 15; 4.1.2009, p. 7; 8.1.2009, p. 12. 226 See http://palabra.ezln.org.mx/comunicados/1994/1993.htm; http://www.radioinsurgente.org/; http://enlacezapatista.ezln.org.mx/. 227 This is broadly explored and analyzed by Volpi (2004) p. 24 ff., 133. 228 Aguirre Rojas (2002) p. 65. 229 Ley Agraria Revolucionaria, published in El Despertador Mexicano, Organo Informativo del EZLN, México, No. 1, diciembre 1993, http://palabra.ezln.org.mx/comunicados/; Acuerdos de San Andres, printed in Hernández Navarro and Vera Herrera (2004) p. 53 f. 230 Primera Declaración de la selva Lacandona, in Marcos (2001) p. 13.

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the concept of private property. Thereby, they criticize a universalism which is based on the very old idea that the development of the world must follow a uniform path and the strong belief in the universal validity of abstract legal concepts in western legal consciousness. In addition, the Zapatista movement has developed a legal counterposition, reflected in the formulation of concrete legal demands and the creation of autonomous municipalities which partly operate on the basis of their own laws. By creating their own authorities like the Juntas de Buen Gobierno and their own legal framework, they try to limit the domination of state law and thereby – indirectly – also the domination of what Mattei calls imperial law. Another interesting aspect is that the Zapatistas justify their rebellion, their occupation of land and the establishment of their autonomies de facto also with legal arguments. An important provision in this respect is article 39 of the Mexican Constitution. Accordingly, the national sovereignty essentially and originally resides with the pueblo; all public power comes from the pueblo and shall be used for its benefit; and the pueblo always has the right to change or modify the form of its government. Already in their First Declaration, the EZLN justified their insurrection with this provision.231 This connection between rights in land and the concept of sovereignty implies a judicial antipode against the occupation of the Spanish conquerors. As described above, this occupation constituted the legal basis of the dispossession of indigenous people, the acquisition of private property rights by the conquerors and the submission of the Mexican territory under the powers of the Spanish Crown (see above, III.). The idea of sovereignty also plays an important role on a level which may be more symbolic than legal but nevertheless seems to be important: The Zapatistas strengthen their autonomies by creating their own symbols of territorial power as well as by using and re-interpreting already existing state symbols.232 For example, they composed their own hymn and erected their own municipality signs which usually tell the passerby the following: “Está Usted en Territorio Zapatista en Rebeldía. Aquí Manda el Pueblo y el Gobierno Obedece.”233 An example for the usage and reinterpretation of already existing symbols is the usage of the Mexican flag. Marcos upheld the Mexican flag at the official beginning of the negotiations of San Andrés. Because of the symbolic impact of a Zapatista standing in front of the Mexican government and upholding the Mexican flag and the new meaning given to the flag thereby, the photography of this scene became one of the most famous and frequently used pictures of the

231

Primera Declaración de la selva Lacandona, in Marcos (2001) p. 14. Article 39 is again quoted in the Second Declaration: Segunda Declaración de la selva Lacandona, in Marcos (2001) p. 45 f. 232 Regarding this phenomenon in none state legal systems see also Merry (1988) p. 881, 890. 233 “You are on Zapatista territory in resistance. Here rules the pueblo and the government obeys.”

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Zapatista movements. In particular because of the strong presence of the Zapatistas in internet and other mass media such pictures gain strong symbolic value and strengthen their reference to article 39 of the Mexican Constitution. Also several declarations and messages refer to the Mexican flag and turn it into their flag.234

GENERAL CORNERSTONES From all this, we can draw the following ideas which may serve as cornerstones of a postcolonial legal perspective: Firstly, a postcolonial legal approach analyzes legal concepts, systems and disputes in a historical and global context. In particular, it is necessary to consider the colonial past as well as subsequent forms of international legal dominance. It is necessary to take into account colonial experience and how this experience still imprints former colonies and colonizers. Example: Private property in land is analyzed in the context of the colonial past, subsequent power structures and foreign influence on Mexican agrarian law. Secondly, if the person who intends to take a postcolonial legal perspective is located in the centre, she has to be careful how she relates the new information she gains from the periphery to her familiar categories, concepts and principles. Maybe she will also have to rethink her very basic assumptions about what law is. In this respect, postcolonial legal studies require what Frankenberg235 demands from critical comparative law, namely to be aware and reflect the own assumptions and to “de-center” the personal point of view. This does not mean to completely abandon this point of view (which probably is not possible) but to consciously take it into account and be aware of it as subjectivity. Thereby, postcolonial legal studies may enable a true “cognitive transformation”. Example: Studying land conflicts in Mexico requires to question the concept of private property and at the same time to be aware of how this concept has already imprinted our mind and formed our categories of legal thinking. Thereby it will be possible to understand other approaches (in particular but not only indigenous approaches) towards land and to take them seriously. Thirdly, from the first two points follows that legal history, comparative law, and legal anthropology play a central role in the development of a postcolonial legal perspective. Comparative law, in this context, is understood as a “study of the relationship, above all the historical relationship between legal

234

See for example: Segunda Declaración de la selva lacandona, Marcos (2001) p. 50; CCRI-CG del EZLN, Votán Zapata o 500 años de historia, in Marcos (2001) p. 22. 235 Frankenberg (1985) p. 413 f.

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systems or between rules of more than one system”236 and as a critical learning experience in the sense of Frankenberg.237 Law and anthropology may be a useful approach towards other concepts of law (non state law, legal pluralism etcetera). Fourthly, postcolonial theories and postcolonial politics are interrelated. Postcolonial theory is closely related to current postcolonial struggles. Hence, postcolonial legal studies should be close to postcolonial legal reality and legal disputes (which may be individual legal disputes or disputes of social movements). Example: An analysis of Mexican land law from a postcolonial perspective should include the analysis of actual land conflicts, dispossessions and social movements. Fifthly, postcolonial struggles and postcolonial theory are directed towards liberation. Hence, an important question which arises from a postcolonial legal perspective is the question about the role of law in a postcolonial process of liberation. Example: In analyzing land conflicts in Chiapas the question arises how indigenous movements, the Zapatistas for example, actually do use and how they could use law and legal discourse in their fights. The Convention 169238 for example plays an important role in this context. Sixthly, postcolonial theory criticizes (not only European but any) universalism. Hence, postcolonial analysis and critique should not lead to the creation of new universalisms. Postcolonial liberation is rather directed towards pluralism. Again, the Zapatista movement can be taken as an example: They propose counter-concepts without promoting them as universally valid. This is clearly reflected by their guiding theme, the creation of “un mundo donde quepan muchos mundos” (a world where many worlds can co-exist) which means a “pluri-versal world” or a “pluri-versality as a universal project”.239 Inspired by this metaphor, a postcolonial legal approach may be directed towards legal pluriversality which can be understood as the creation of “a global legal order where many legal concepts can co-exist”.

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