Vulnerable people(s) in 21st Century Developments. An Interview with Jessika Eichler

Jessika Eichler

Jessika Eichler is a Research fellow at the Law & Anthropology Department (Max Planck Institute for Social Anthropology) and the Institute for Latin American Studies (FU Berlin) specializing in human rights. She is currently a visiting scholar (Alfred Grosser Chair(e) Sciences Po 2019-2020) at CERI, until 30 June 2020. We are interested in knowing more about her research.

Can you tell us a bit about your academic research background?

The theory and practice of human rights constitutes my core field of exploration, inspiration, passion and research-based action. Embracing a wide range of current issues of concern, I have placed a focus on indigenous peoples and minorities to some extent. This includes theoretical debates on rights holder categories, encounters and reconciliation of collective and individual rights regimes; similarly, I have explored issues related to implementation/vernacularisation of the right to prior consultation, participation and self-determination understanding rights in their socio-political context.

Based on an interdisciplinary social science background (BA UCM Maastricht & Sciences Po Toulouse) and international legal expertise (LL.M. Law Maastricht & RWI Lund), I have approached indigenous peoples’ rights blending ethnographic research in Bolivia and theoretical frameworks (Ph.D. HRC Essex & Sociology Department).

More recently, I have discussed such issues comparatively, focusing on the Andes, Latin America and global levels, informed by theoretical underpinnings (Fritz-Thyssen Post-Doc grant at Law & Anthropology Department, MPI and Institute for Latin American Studies, FU Berlin following a research grant on Intangible Cultural Heritage).

Extensive teaching appointments at different levels have allowed me to contribute to participation-oriented learning and transmission of abstract contexts (Graduate Teaching Assistant at the Government & Sociology Department Essex and more recently visiting professor at the Law Faculty, Università degli Studi di Torino).

You have recently published a book entitled Reconciling Indigenous Peoples’ Individual and Collective Right. Would you mind presenting the main thesis of this book?

The book proposes a theoretical alternative or third way in approaching (indigenous) collective and individual rights regimes placing emphasis on peremptory norms for illustrative purposes. Essentially, it tries to circumvent collective-individual binary divides that lay at the core of contemporary debates. As one of indigenous peoples’ core demands and most pressing issues, the right to be consulted on matters affecting them, to participate in a variety of processes and ultimately exerting the right to self-determination demonstrate high levels of vulnerability, exclusion and marginalisation. This, in turn, opens new debates on other related rights including cosmovisions and spiritualities as well as the particular needs of sub-groups such as women, different age groups and inter-generational rights. The book fundamentally discusses spill-overs and transcending effects between the latter rights and the collective umbrella.

Current socio-environmental violations in the Amazon region are of particular relevance for a rethinking of the relationship between indigenous peoples and the State and stronger legal frameworks embedded in rights-abiding political institutions and decision-making instances. Re-orienting the law becomes one of the most urgent, yet challenging tasks of our time. This also entails new forms of participation allowing those affected to be included in its creation, autonomous governance and empowered encounters with the State. The book thus attempts to approach such dilemmas adopting a decolonial perspective.

You relate individual and collective claims rights in the specific case of indigenous peoples and wonder whether these can or should be examined as individual rights per se, as part of larger categories (women, children, for example), or as constituting indigenous groups. What sort of methodology did you use for such research and why is a combination of law and anthropology particularly relevant to address such issues?

Understanding (indigenous) collective rights as part and parcel of regimes steered towards upholding individual rights possibly represents one of the most fundamental criticisms of their very institutionalisation. Declaring them ‘individual rights’ or attributing individual legal characteristics could be considered problematic for a number of reasons. In a legal sense, this raises important procedural issues based on the limited possibilities for invoking collective rights given an ill-equipped human rights system vis-à-vis such potential claims. Who is able to claim and represent such rights? How do we do justice to indigenous own decision-making and representative instances and organisations? The current human rights system only touches upon the surface of procedural concerns in that regard. Another, albeit related, question concerns inherent power imbalances in international human rights law (IHRL) including both ‘hard’ or enforceable codified law (such as treaties) and practice, as illustrated by jurisprudence and monitoring practice. This might be traced back to the very genesis of law-making or agenda-setting. In that sense, the constituent elements or underlying, self-proclaimed rationale of indigenous collective rights are not responded to by existing law, including ‘supported doctrines, policies and practices based on advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences’, their discrimination in exercising their rights suffering of historic injustice, their ‘colonisation and dispossession of their lands, territories and resources’ and preventing their right to development (preambular paragraphs, UN Declaration on the Rights of Indigenous Peoples).

We might similarly shed critical light on accommodation or integration practice exerted by group rights regimes. The very case of ethnic, cultural, religious or language minorities demonstrates their somewhat weak position in IHRL generally, given persisting insistence on sovereignty and territory-based understandings of the State and its position in the international system. Rather than embedding indigenous rights in, for instance, women’s legal regimes, due attention needs to be paid to the particularities of each rights holder group. Some indication may be derived from the early beginnings of IHRL; ICCPR (International Covenant on Civil and Political Rights) and ICESCR (International Covenant on Economic, Social and Cultural Rights) most notably establish the right to self-determination and development allowing indigenous peoples to pursue their own collective path in the light of long-lasting patterns of (neo-)colonial domination. In the light of such particularities, common regimes may not have appropriately captured the differing needs and self-proclaimed demands emerging at the very grassroots level. Instead, overlapping claims may be subsumed by intersectional rights.

This necessarily raises questions of epistemological nature requiring methodological bridges between the disciplines. Law & Anthropology thereby allows us to explore the realities of the law on the ground paying due regard to rights holder perspective. It allows to grasp the complexities of I) the law and its implementation and II) local positions as assumed by affected individuals, groups or communities in both drafting and shaping norms.

In the course of another research project, you address intangible cultural heritage debates, with a particular emphasis on vulnerable culture bearers such as ethnic or autochthonous minorities, indigenous peoples, and refugees in migration contexts. Would you mind telling us a little about this latter category (refugees) of vulnerable culture bearers?

The research project “Intangible Cultural Heritage under Pressure? Examining vulnerabilities in ICH regimes – minorities, indigenous peoples and refugees” actually explicitly engages with common threats faced by indigenous peoples, ethnic minorities and refugees in invoking cultural rights in the context of assimilationist, integrationist State regimes. In fact, the field of intangible cultural heritage (ICH) lends itself very well for perpetuating homogenising discourses to the detriment of unperceived, unrepresented practices. The struggle for recognition (of identities and cultural rights) thereby touches upon yet another dimension, namely the opening up of institutional structures towards a more holistic, pluralistic and diversity-oriented understanding of ICH in both domestic and inter-State recognition procedures and ultimately practice.

Refugees share the common burden of external pressures to conform with homogenising, excluding narratives as to inter-alia language practice, social standards, education and other fundamental concerns. At the same time, related rights as to a secure and safe environment, rights of residence, dignified living conditions, citizenship and voting rights jeopardise basic conditions which could facilitate the enjoyment of cultural rights. Considering the triadic State responsibility to respect, protect and fulfil human rights, refugees can be considered excluded from virtually all such necessary dimensions of protection.

Right wing movements and parties visibly instrumentalise such exclusive entitlements for cultural rights in daily propaganda and measures proposed; recent electoral successes such as achieved by AfD (Alternative für Deutschland) in regional elections in Brandenburg and Saxony (Germany) reveal such detrimental impact on a pluralistic, inclusive and accessible understanding of exercising cultural rights.

Will you be working on new areas of research during you stay at CERI? Are you moving towards new themes of research?

I strongly believe rights demonstrate high levels of intersectionality and prove to be ‘indivisible, interrelated, universal and interdependent’ (Vienna Declaration and Programme of Action, World Conference of Human Rights). Indigenous peoples’ rights developments, for instance, have shown highly relevant for (other) rural populations articulating rights in similar contexts when exposed to the enlargement of agroindustrial frontiers, extractive industries and other mega projects or large-scale infrastructure projects.

Similarly, recent developments at UN level reveal how respective norms have come to be transformed into soft-law and hence have entered the international arena. At the same time, vulnerabilities gradually arise at individual level exposing indigenous human rights defenders to high risks culminating in death threats and murder.

As academics throughout the social sciences I feel we are responsible for gaining and transmitting a deeper understanding of such complex dynamics to inspire decision-makers while allowing civil society to take a share, we form a fundamental part in knowledge processes and their democratisation. In this spirit, global changes including migration developments require a profound understanding of new vulnerabilities, intersectionality or overlapping claims and new legal categories yet to be explored and established. While demanding immediate action, socio-political contexts, dynamics, institutions and ultimately decision-makers need to be uncovered for new categories to find embedment. I deem the Chair(e) Alfred Grosser at CERI/Sciences Po a very inviting and generous opportunity to embark on such routes.

Interview by Miriam Perier, CERI.

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