The right to be, to feel and to exist: Indigenous lawyers and strategic litigation over Indigenous territories in Guatemala

ABSTRACT

Indigenous communities around the globe increasingly resort to courts to seek protection for their individual and collective rights. Not only has the use of strategic litigation by Indigenous peoples to defend their human rights been underexplored but the role of Indigenous lawyers and experts is also a blind spot. Drawing on interdisciplinary, qualitative and collaborative research with Indigenous lawyers, experts and legal activists who are involved in the legal defence of the rights of Indigenous peoples in Guatemala, we foreground a complex legal ethnographic landscape regarding their intergenerational legal-political battle in a society facing transition from recent mass violence and the imposition of extractive economies. This article explores how their Indigenous lawyering is rooted in their Indigenous being and embedded in Indigenous water and land ontologies. We demonstrate how these Indigenous litigators are advancing through counter-hegemonic legal practice that goes beyond dominant Euro-Western and colonial legal positivistic assumptions about human-water-life relationships embedded in a racialised neoliberal legal structure. We argue that in contrast to human rights activist lawyers, they are occupying and exercising a differentiated role, through their positionality and their non-conventional practices, as transformative connectors of worlds before the courts or political ontological knowledge brokers, without falling into romanticism.

KEYWORDS:

• Indigenous peoples’ rights
• Indigenous ontologies
• knowledge brokers
• extractivism
• water conflict
• territory

Introduction

‘Water is alive, and if water is alive it can die, and then who is killing it?’ asked Juan Castro, a Mayan lawyer from the Indigenous Peoples’ Law Office (Buffete de Pueblos Indígenas), during the seminar ‘A critical look at water disputes: a dialogue between Guatemala and Colombia’ in November 2021.¹ Juan continued with his reflection: ‘What are we [Indigenous lawyers] doing to protect water, what are we doing to recognise that water is a living being?’. Juan made these comments in the wake of Guatemala’s Constitutional Court ruling of 2019, which exhorted the state to promulgate a Water Bill to regulate the water regime in line with ‘the social interest’, which, it stated, must take into account the singular perception – material and spiritual – of Indigenous peoples regarding water.² This ruling was the result of a litigation strategy that claimed the existence of a normative void as the legislator had failed to comply with its constitutional duty, enshrined in article 127 of Guatemala’s Constitution of 1985, to issue a specific law to regulate Guatemala’s water regime. The existing regulations governing the right to water are scattered across different laws that do not faithfully comply with the constitutional mandate to serve the ‘social interest’ of a country with a majority of Indigenous peoples³. For this reason, a constitutional review based on a partial legislative omission was brought by Juan Castro’s Indigenous Peoples’ Law Office together with Indigenous authorities across the country, activists and a human rights organisation called ‘Alianza por el Agua’.

Since the 1990s, Guatemala has developed a strong tradition of strategic human rights litigation, initially as part of its transitional justice process. Strategic human rights litigation should be understood as the pursuit of justice through an articulated display of legal, political and communication strategies oriented towards generating changes in legislation, public policies and institutions.⁴ In Guatemala, the first cases were related to genocide and serious human rights violations that occurred during its 36-year internal armed conflict (1960–1996). In 1999, the UN-sponsored Commission for Historical Clarification (CEH) revealed that during this period, marked by forced disappearances, large-scale massacres and scorched-earth campaigns which targeted the rural Mayan population, over 200,000 people died, 45,000 were forcibly disappeared and at least 400 Indigenous villages destroyed.⁵ Moreover, CEH’s final report concluded that the great majority of victims (83.3 percent) were Mayan Indigenous and that the Guatemalan state was responsible for 93 percent of the human rights violations.⁶ The goal of this human rights litigation has been to hold the Guatemalan state accountable through the conviction and sentencing of high-ranking military officers, such as ex-general Ríos Montt.⁷ These emblematic cases have been led domestically by collectives and human rights organisations, which were mainly ladino, urban and supported by well-known international human rights non-governmental organisations (NGOs), with Indigenous participation being limited to roles as victims, witnesses and assistant lawyers. Further, national external experts intervening before the courts were mostly prominent non-Indigenous voices who had been involved in supporting Indigenous struggles.⁸ Indeed, this fast-growing practical field of litigation is generally carried out by human rights NGOs or law firms, composed of teams of legal professionals who assume the role of representing or accompanying the victims during their legal actions.

In the early 2000s, a new actor in the Guatemalan human rights lawyering and litigation scene emerged: Indigenous lawyers – men and women – started to create organisations with expertise in strategic litigation focusing on the legal defence of the rights of Indigenous peoples. In 2004, 20 Indigenous lawyers from different parts of the country created the Association of Mayan Lawyers and Notaries Nim AjPu (Asociación de Abagodos y Notarios Mayas Nim AjPu) with the mission to defend and promote the individual and collective rights of Indigenous peoples in Guatemala.⁹ It currently counts almost 180 associated members and 70 active litigators working across the country. In the past 20 years, other Indigenous litigation associations and law firms have been created, such as the Indigenous Peoples Law Office (Bufete de Pueblos Indígenas)¹⁰ and the Chomijá Association of (female) Indigenous Lawyers (Asociación Chomijá),¹¹ while independent Indigenous lawyers have also started to engage in strategic litigation.

While in the 1970s and 1980s Guatemala suffered one of the bloodiest armed conflicts in Latin America, currently it is one of the Latin American countries with the greatest water conflicts, caused by the installation and operation of hydroelectric dam projects, mines and large-scale monocultural agro-industrial projects, mainly in Indigenous territories. These extractive projects impose disproportional impacts on the Indigenous communities by severely damaging their livelihoods, causing devastating environmental damage, provoking violence and social division, and criminalising Indigenous leaders and authorities who oppose natural resource extraction.¹²Across the world, Indigenous peoples have used litigation as a last resort to confront to the lack of recognition of their collective rights or to seek remedies for their increasing violation, such as the multiple impacts of the extraction of raw materials from their territories.¹³ While there has been scholarly attention to the judicialisation of Indigenous politics¹⁴ or how political Indigenous disputes have been moved to the courts, the use and practice of strategic litigation by Indigenous peoples has been underexplored. Some research is done on the role of Indigenous lawyers in common law jurisdictions, such as Canada.¹⁵ Nevertheless, Indigenous legal action taken by Indigenous legal organisations or Indigenous independent lawyers to defend their human rights in contexts of societies facing transition from recent mass violence and the imposition of extractive economies is a blind spot. One of our research questions was what makes Indigenous lawyering different from cause-militant-engaged lawyering which, ‘from outside’ or as a ‘companion’ of the causes and processes of Indigenous peoples, engages with strategic human rights litigation.

Drawing on interdisciplinary qualitative collaborative research, the aim of this article is to foreground the complex legal ethnographic landscape for the intergenerational legal-political battle undertaken by Indigenous lawyers and legal activists that made possible the above-mentioned groundbreaking Constitutional Court ruling, which reaches the conceptual frontier in the Guatemalan legal system. Against the background of the ‘legal hype of Rights of Nature’,¹⁶ which is snowballing across the world and attracting huge legal scholarly attention, we want to make visible – through direct voices – how these Indigenous litigators are advancing by means of counter-hegemonic legal practice, which goes beyond dominant Euro-Western and colonial legal positivistic assumptions about human-water-life embedded in a racialised neoliberal legal structure. This landscape needs to be read against the current international scene of demands by Indigenous peoples in various parts of the world who are mobilising against the commodification of nature and demonstrating alternative ways of knowing, being and living embedded in radically different human-nature relationships¹⁷. It needs to be recognised that ‘law is central to any ontological notion of reality’.¹⁸ While none of the Indigenous lawyers and legal experts is actively using the term Indigenous ‘ontologies’, a buzz word in anthropology these days, we highlight their exercise of a counter-hegemonic legal practice rooted in their ‘Indigenous mode of being’¹⁹ and how their legal reasoning is embedded in these Indigenous water and land ontologies. The analysis of their legal practices will therefore also contribute to critically scrutinising the epistemological and ontological underpinnings of dominant legal conceptualisation. Because, indeed, ‘the world is not simply epistemologically complex. It is ontologically complex.’²⁰ We argue that these Indigenous litigators invite legal scholars to an ‘urgent rethinking of the human right to water and, more broadly, human rights by unsettling the modern divides of culture/nature and human/more-than-human’.²¹ We draw on the premise that ‘[i]f law is intrinsic to world-making, then having life options entails the possibility of envisioning that existing ordering regimes could be otherwise, and of contributing to another reality’.²² In order to understand these novel legal practices embedded in plurilegal realities, we argue that it is imperative to analyse first how these Indigenous lawyers have been pushing for transformative and decolonising change of the Guatemalan legal system and public institutions, marked by racist and Euro-Western dogmatic legalism. Therefore, we critically unpack how Guatemalan Indigenous litigators, in contrast to conventional and human rights activist lawyers, are occupying and exercising a differentiated role, through their positionality and their non-conventional practices, as transformative connectors of worlds before the courts without romanticising that role.

The article is structured as follows. It begins with a brief overview of the methodology, which, through interviews and the organisation of international encounters between academics, policy makers and Indigenous litigators, enabled us to hear and dialogue directly with Guatemalan Indigenous legal protagonists. Then we briefly discuss Guatemala’s legal system, which these Indigenous lawyers need to navigate and which is marked by its racial colonial legacy. We proceed to unpack the long road that Indigenous lawyers have walked and are still walking to leave behind the dominant mode of strategic human rights litigation, and analyse their role as transformative connectors of worlds before the courts. In the final section, we discuss the legal political battle for recognition of Indigenous authorities as legal subjects and right-bearers and finally describe the innovative legal practices that are leading to a gradual recognition of Indigenous legal water and land ontologies. We then close with some final reflections.

Methodology

This article emerges from an interdisciplinary collaborative research project developed during 2021–2022 in the midst of the COVID-19 pandemic. The project examined the historical process of Indigenous legal action in Guatemala to defend Indigenous peoples’ rights and to rethink and challenge state power.²³ It is part of a larger European Union-funded research project which looks at Indigenous legal practitioners such as lawyers and judges and analyses both in-court and out-of-court conflicts and processes in Guatemala, Colombia and Nepal.²⁴

The authors, both based in the Global North, share a mixture of scholarly and practitioner interests and have been working in different Latin-American contexts over the past 20 years. The first author is a Belgian-Flemish legal anthropologist who, since 2002, has been collaborating with Indigenous communities in Guatemala, amongst other countries, as a scholar and human rights practitioner in diverse research projects, focussed on local post-conflict processes, the impact of hydropower dams, and Indigenous water practices and values. Her first collaboration with Indigenous lawyers was in 2014 to conduct, together with Q’eqchi’ authorities, a study of the state-led Xalalá hydroelectric project and its impact on their human rights. The policy report, titled ‘What will happen to our sacred land and water?’,²⁵ echoing new concerns of Q’eqchi’ war survivors, was presented in March 2015 in several places in the country. The criminalisation of Indigenous leaders who were defending their territories reached a high point when on the doorstep of the hotel in the capital where the report was presented, with Juan Castro as one of the commentors, two well-known Indigenous authorities who were opposing the dam project in the Western highlands were arrested by the police.²⁶ The mapping of the interviewees was mainly made through the existing networks and contacts of the first author.

The second author is a Colombian lawyer and activist with more than 15 years of experience in human rights litigation and socio-legal research in Colombia. She worked as a legal assistant in different local courts and then in a well-known Colombian NGO as part of the international litigation team, pursuing several cases of human rights violations related to the armed conflict before the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights. Following this experience, she co-founded an NGO focused on socio-legal research, advocacy and litigation on the rights of ethnic groups and peasant communities in several regions of the country regarding the imposition and human rights impacts of extractive economies.

During the research process, our different professional and academic backgrounds and experiences mutually reinforced our interdisciplinary methodology and analysis of the empirical material. The original focus of our research was on analysing the different stages and developments of the strategic litigation process which led to the above-mentioned groundbreaking Constitutional Court ruling regarding water. However, during the first informal conversations with some of the first-generation Indigenous lawyers and legal practitioners, during which we presented the original research set-up and goals, one concern was raised and a specific research need was expressed. The concern was that to understand the 2019 ruling and the litigation process behind it, we should first understand the long legal battle to recognise Indigenous authorities as rights subjects in Guatemala. The need expressed was that our research should contribute to the systematisation of their historical and intergenerational legal-political battle, as this had not yet been documented. Based on this concern and request, we redirected our research questions and goals in order to be more aligned with the needs and interests of our interviewees. Further, during the research process, several of the interviewees expressed their interest in learning more of the Colombian case and Asian context in which the broader project is working. As described below, the project therefore organised two international encounters in order to foster South-South dialogues between academics, Indigenous legal practitioners and policy makers.

We conducted four cycles of hybrid (online and in-person) interviews in July, September and November 2021 and March 2022 with Indigenous lawyers of different generations, anthropologists, experts, public officials and legal practitioners who have intervened in or accompanied litigation in defence of Indigenous peoples’ collective rights, especially those related to the extraction of natural resources and the defence of territory and water. Fifteen individual interviews were carried out online, which were recorded and fully transcribed. While in Guatemala during a field research stay in November 2021, we undertook an additional nine individual interviews, which were not recorded. The interviewees, following the ethics standards of the research funding body, were asked beforehand for their consent and whether they wished to be named or anonymised. All the participants indicated that they wished to be named.

Further, two round tables were organised to present and discuss the preliminary research results as part of the broader collaborative research project: first, an in-person discussion in Guatemala with a small group of local actors, such as activists and researchers (November 2021); second, a virtual encounter with the majority of the interviewees (January 2022). This second round table allowed us to receive critical feedback on our analysis to strengthen our understanding of some of the themes. Moreover, our analysis was also informed by the above-mentioned seminar ‘A critical look at water litigation: a dialogue between Guatemala and Colombia’,²⁷ during which, among others, Juan Castro and Juan Gabriel Ixcamparij, deputy director of the Asociación de Abogados Indígenas Nim-AjPu, presented their legal strategies related to territory and water. The final writing of this article draws also on the analysis of the discussion during the International Symposium in October 2023, ‘Indigenous Peoples, Water and Human Rights: Dialoguing Encounters’,²⁸ in which participated, amongst others, the UN Special Rapporteur on the human rights to safe drinking water and sanitation, the Chair of the UN Expert Mechanism on the Rights of Indigenous Peoples and other experts, lawyers and legal practitioners from Asia and Latin America, including the Guatemalan lawyer, Juan Castro.

Finally, this interdisciplinary fieldwork, as well the writing of this article, was informed by an extensive literature review of American, European and Latin American scholarship on multiple themes, such as institutional racism, the judicialisation and juridification of Indigenous politics, strategic litigation, cause-militant-engaged lawyering and knowledge brokers. These different literature bodies were triangulated with secondary sources concerning Guatemala, namely reports from public and international institutions on the impacts of the peace accords, reforms of the justice system, the adoption of public policies on Indigenous rights, and legal pluralism.

Indigenous lawyering within and against a Guatemalan legal system marked by its racist colonial legacy

A common thread during the interviews concerned how Indigenous lawyers had to litigate within a domestic legal system embedded in a deeply rooted colonial and historically racist structure which had treated them for centuries as subordinated and inferior human beings. It has been recognised that ‘institutional racism has another name: colonialism’²⁹ and these Indigenous lawyers’ experiences need to be situated within this Guatemalan reality. An exhaustive analysis of the nuances and heterogeneity in American, European and Latin American academic debates about critical race theory and post-colonial and critical legal studies is beyond the scope of this article, though Guatemalan Indigenous and non-Indigenous intellectuals and activists give important insights towards a better understanding of the nexus of the state structure, law, race and colonialism. Indigenous activist and anthropologist Aura Cumes states that Guatemala’s power settings, public policies, social hierarchies and state control respond to an ethnic/racial classification of its Indigenous population.³⁰ According to Indigenous intellectual Amanda Pop Bol, this is accompanied by the complicity of silence, humiliation and legalised impunity.³¹ In its final report, the CEH demonstrated that the historical root causes of the internal armed conflict were the ‘exclusionary, racist, authoritarian and centralist characteristic of the state, economy, and Guatemalan society’³² towards its Indigenous population. Even though Guatemala’s constitution of 1985, a result of the political and democratisation process of that time, recognises cultural diversity and the country´s multicultural horizon by granting rights to Indigenous groups, it did not fundamentally modify the exclusive and racist nature of the state.³³ The Guatemalan state is, in the words of Rigoberto Quemé, ‘exclusive, racist, macho, and authoritarian’,³⁴ and moreover, as Marta Elena Casaus states, has ‘a colonial structure sustained by hegemonic institutions and by families with economic and political power’.³⁵

Furthermore, these critical Guatemalan intellectuals share the analysis that the fight for legal-political recognition of Indigenous peoples’ rights has been unfolding in this context of historical and structural racism in the Guatemalan state and society.³⁶ Indigenous peoples have therefore articulated a ‘culture of resistance’, understood as an ‘ideological elaboration of profound political content, transmitted and culturally transmissible to new generations’.³⁷ Moreover, this legal recognition, according to Indigenous scholar Emma Chirix ‘has not been a gift from the state or governments and even less from economic and political elites’.³⁸ In fact the signing of the Agreement on the Rights and Identity of Indigenous Peoples of 1995 and the ratification of the International Labour Organization’s (ILO) Convention No. 169 (the Indigenous and Tribal Peoples Convention, 1989) occurred within the framework of the Peace Agreements of 1996 and mobilised spaces for the political participation of Indigenous people.³⁹ These two key legal moments have been described by Guatemalan scholars as ‘participation openings’ or ‘inclusion windows’ for the Indigenous population in the transformation of the state. However, it needs to be recognised that despite these progressive human rights advances, scholarship on law and coloniality has shown that legal colonialism remains in force, given the continuity of archaic principles, concepts and legal-political categories rooted in Euro-western legal concepts.⁴⁰ Clear examples are the positivisation of land, subsoil, minerals and water as exploitable objects, on the one hand, and the hierarchisation and subordination between ‘human’ and ‘non-human’ communities, on the other.⁴¹ In the Guatemalan case, for Benito Morales, a high-level Indigenous litigator and political leader,⁴² it is very clear: ‘In Guatemala it is not a matter of having your rights regulated, it is about who has the power to talk [before the Court]’. So indeed, as will be discussed below, the first and main legal struggle these Indigenous lawyers faced to obtain state compliance with their individual and collective Indigenous peoples’ rights was for Indigenous authorities to be recognised as real, existing and full legal-political subjects. We understand Indigenous legal action, such as strategic litigation, as an expression of Indigenous peoples’ political resistance in a society and state marked by historical and structural racism.

Indigenous litigators: transformative connectors of worlds before the courts

Drawing on the voice of the interviewees, our research asserts that the law and judicial system in Guatemala have been what Lawrence and Shanks describe for Canada as ‘a mechanism of assimilation, colonial governance and dispossession, a basis for the assertation of rights, and a method of resistance’.⁴³ The growing scholarship on strategic human rights litigation describes its potentials for ‘social change’,⁴⁴ for ‘strengthening institutions’,⁴⁵ such as courts, ‘to make the law “better”’⁴⁶ and for ‘legal empowerment’⁴⁷ of the communities whose human rights were violated. Though we argue that Indigenous litigators seek another and much deeper goal, which is the structural transformation of this racialised and colonially structured state by rethinking and legally challenging state power. Or to put it in the words of Amílcar Pop, co-founder of the Association of Mayan Lawyers and Notaries:⁴⁸ ‘In the context of the aspiration to transform the institutionality of power, the state must be penetrated’.⁴⁹ Indeed, in the words of Miriam Chavajay, Indigenous human rights officer of the UN Office of the High Commissioner for Human Rights, reflecting upon the impact of the Indigenous lawyers: ‘[they] went to the courts to shake its foundations’.⁵⁰

Interestingly, when reflecting upon the milestones of the different strategic litigation over the past 20 years, the Indigenous lawyers and experts from the first generation started by referring firstly to their family background and origins and how these have marked their professional career paths. A common thread was the difficult relationship between their Indigenous roots, their lived experiences of racism and exclusion at school, the university and in society more broadly, and their adaptation and resistance to these dominant non-Indigenous logics and structures.

For example, Amílcar Pop states:

I did not start in advocacy activism for Indigenous rights. I inherited that fight from my grandparents and great-grandparents, who fought against the second wave of land robbery in my region as a result of the invasion of a group of Germans that came to start with coffee plantations. The first wave was by the Spanish colonisers, and the second one at the end of the 1800s and continued almost the entire last century.⁵¹

Most interviewees of the first generation also referred to the huge impact of the internal migrations of their families in the 1990s from rural areas to urban settings for economic reasons. They explained how they were forced into contact with changing realities and with other languages and social codes embedded in the Euro-Western ladino urban system. For example, most of the first generation of Indigenous lawyers experienced a difficult approach to the Spanish language combined with a progressive loss of their own Indigenous language. In this regard, Romeo Tiú, who used to work for MINUGUA (the United Nations Verification Mission in Guatemala) and the Office of the High Commissioner for Human Rights, but is also an Indigenous authority and college professor, reflects:

I am a Mayan K´ich´e of Totonicapán, I was born into a very poor family. I remember going to school without speaking Spanish and well, I grew up in that dynamic. I was the first one in my family to be interested in going to college, and I did it with much effort because I had to migrate to the capital city.⁵²

In fact, they have been constantly moving and transitioning between opposite worlds – Indigenous and non-Indigenous – which, in our opinion, is reflected in their counter-hegemonic exercise of law, nourishing a legal-political resistance against the dominant and oppressive law and state system. Pedro Ixchíu, coordinator of the Indigenous Branch of the Guatemalan Judiciary, was very critical of the university law school:

The university [legal] education system teaches absolutely nothing about social issues, nothing about history, nothing about politics. You learn politics because you do it, not because you are taught categories to question power.⁵³

At the same time, the majority of the interviewees, as well as their families or communities of origin, are survivors of the mass violence of 1970s and 1980s. For this reason, they saw in the law a necessary path towards seeking justice for and non-repetition of the state violence that they suffered personally. As Benito Morales remembers it:

I come from the Quiché, a province in the West, and we were greatly affected by the armed conflict. At the beginning of the eighties, the repression was huge, and we had to flee, first to the south of the country, then to the capital city and finally abroad because things got much more complicated.⁵⁴

The analysis of the interviewees adds another layer underexplored in the literature. In contrast to conventional lawyers, activist human rights lawyers, known in American-European socio-legal scholarship as ‘cause lawyers’⁵⁵ or as ‘militant, popular or alternative lawyers’⁵⁶ in Latin American scholarship, see ‘their legal practice as an expression of a broader political, legal, social or moral cause’.⁵⁷ To promote changes in domestic regulation, Indigenous lawyers must use international human rights standards to strengthen their litigation arguments and therefore have an active role in ‘the process of adapting the ideas to human rights, from international instruments to institutions to local realities’, known as vernacularisation.⁵⁸ However, while navigating dominant international human rights language and oppressive state structures, they also mobilise Indigenous conceptions of Indigenous authority, water, land and territory, fostering a dialectic exercise and ontological encounter in Guatemala’s judicial system and illuminating and constructing counter-hegemonic legal meanings of these key concepts. As Wendy López, a young Indigenous lawyer and current director of the Indigenous Peoples Law Office, one of the largest Indigenous consortia, explains:

The visions from Indigenous people are completely different from non-Indigenous conceptions (…) the ways of perceiving the world, of perceiving the [legal] defences, of perceiving the struggles, are different.⁵⁹

Other scholarship looking into Indigenous brokers draws on the legal anthropological concept of ‘knowledge broker’.⁶⁰ These include interpreters, NGOs and human rights activists who know both the local contexts/perspectives and the domestic and/or international human rights structure and dynamics in the context of the implementation of the Right to Free, Prior and Informed Consent (FPIC) regarding extractive development projects in Indigenous territories in Peru⁶¹ and Nepal.⁶² The scholarship shows that these Indigenous actors are not just intermediaries but also ‘political actors in positions of brokerage with regard to shaping the meaning of rights’.⁶³ Our research reveals another specific layer, namely that they are also political ontological knowledge brokers before the courts. During the interviews we regularly heard that their legal strategies are not solely elaborated from their legal expertise, but above all originated in their ‘Indigenous mode of being’,⁶⁴ which is enunciated through ‘feeling’ and ‘collective awareness and consciousness’ and thus points to a differentiating aspect of their legal advocacy.

As Pedro Ixchíu explained:

I believe there must be a feeling from the Indigenous perspective [desde lo indígena] to be able to act in correspondence with what is really happening among Indigenous peoples.⁶⁵

These Indigenous lawyers before the Guatemalan domestic courts, as individuals but also as collectives, who are Indigenous brokers or what we call transformative connectors of worlds, occupy a role strongly differentiated from that exercised by a non-Indigenous lawyer who is litigating in similar cases of Indigenous peoples’ rights. Indeed, not only are they ‘social, political, and moral actors’,⁶⁶ but they also play a crucial role in the process of structural transformation of a racist and exclusive state, placing themselves in the middle of interlegal translation between the judicial system and the Indigenous authorities and communities without assuming a neutral role.

In the case of the Association of Mayan Lawyers and Notaries, its director, Cristian Otzín, states:

We cannot file a legal brief, an action of protection [amparo] or a legal request without listening to the community, without seeing how the children are, without listening to what women think, without having a dialogue with the elderly. It is important to know what they want, how the situation has affected them, to listen to the way they feel and their voice allows us to understand other concepts and issues we did not learn in law school.⁶⁷

For her part, Wendy López clarifies:

I always get very excited with this kind of process because it´s all the community, there are women, children and elderly people who have deposited all that trust in the lawyer, who have the opportunity to talk and express what they feel, what is happening.⁶⁸

Drawing on the perspective of the interviewed lawyers, our research shows that their relationship with the Indigenous authorities and the communities they represent exceed the classical format of rendering compensated professional services between litigant and client, based on standard contractual clauses, as well as the above-described NGO or pro-bono cause-militant-engaged lawyers, who do have a moral and political commitment to the cause of the victims. It is a close relationship that involves knowing the affected community and building bonds of trust that encompass observing, listening, understanding, living together, connecting with the Indigenous being so as then to be able to transmit that information and the perceptions collected in legal instruments for litigation. So indeed, in similar vein to Claridge’s observations in the case of Indigenous Ogiek litigation in Kenya, in the Guatemalan case ‘litigation can frame a model of community engagement’.⁶⁹

In fact, the two main Indigenous lawyers’ associations – Association of Mayan Lawyers and Notaries and Indigenous Peoples Law Office – share the same internal legal strategy that their members work across the country, thus also in Mayan regions other than their own linguistic community.⁷⁰ This means that Indigenous lawyers belonging to a specific village get in touch with others through legal counsel in their cases, or participate in pluricultural legal teams at the local level which build political and legal alliances, solidarity and collaboration between different Mayan communities.

Cristian Otzín explained:

[W]e have carried out agreements with organisations and Indigenous authorities to have a space so that the association can function in those places, for example, with the Indigenous Mayor´s Office of Chichicastenango. Definitely, these types of setting for practising law exceed tasks that are common to legal proceedings and strategic conduct of the cases to transit to spheres of exchange and political support.⁷¹

Therefore, we argue that Indigenous lawyering might transcend some of the limitations of conventional strategic human rights litigation such as ‘advocacy violence’⁷² or ‘perpetrating good’,⁷³ which refers to the fact that human rights lawyers or NGOs, amongst others, control the narrative instead of the clients and therefore have counterproductive effects on the victims they represent.

In fact, a novel strategy that the Indigenous litigators have developed over time, as well as the amicus curiae⁷⁴ and anthropological expert witness interventions⁷⁵ commonly used in strategic litigation, is to request ‘public hearings’ (vistas públicas) as part of the trials. During those public hearings, women, elderly people, community leaders and Indigenous authorities can intervene directly in the judicial process; their presence and voice give shape to a new horizon for legal procedures, even if their interventions are done in their languages of origin.

At the same time, after hearing our analysis the interviewees who participated in the above mentioned virtual round table asked us to be cautious in not romanticising the Indigenous dimension of their legal practice. In fact, they insisted that self-identifying oneself to be Indigenous does not ensure an ethnic conscience when involved in the judicialisation of Indigenous peoples’ rights. The interviewed Indigenous lawyers stressed that there are also many Indigenous lawyers, magistrates, litigants and prosecutors who carry out an orthodox Euro-Western law practice which does not promote deep system transformation processes, to which our interviewees aspire. Their critical reflection goes along the same lines noted by Mayan researcher Chirix, that Indigenous resistance in Guatemala is not free from differences and tensions.⁷⁶ This is also recognised by Canadian Indigenous legal scholar Val Napoleon:

Romanticism will not enable us to govern ourselves and relate to others on the power of our own ability to govern ourselves. We must apply the same critical thought to our Indigenous legal orders and laws as we do to western law.⁷⁷

The long legal road towards leaving behind dominant human rights strategic litigation

As mentioned in the introduction, Guatemala’s human rights strategic litigation scene has its origin mainly in the legacy of the mass violence of the 1970s and 1980s. During the interviews, all the Indigenous lawyers acknowledged and highly valued these legal processes, as expressed in the words of Christian Otzín:

The fact of putting behind bars a military that was never going to be touched is an important step and gives hope for justice. It is also a way of reparation, given that many victims have spent years asking for justice and obviously 50 or 100 years of prison is a significant step for many communities.⁷⁸

However, there is also a more critical reading of these emblematic cases as they were focused solely on political and civil human rights without considering the collective rights of Indigenous people and limited the participation of Indigenous peoples as witnesses as part of their legal strategy. As Otzín explains:

The analysis of what occurred has been exclusively framed from categories established by international criminal law, transitional justice and the Criminal Code, in a strict exercise of the application of international references and local realities.⁷⁹

And he continues his reflection:

[G]enocide corresponds to the definition given by the Geneva Accords and the Criminal Code, right? The intention of totally or partially disappearing an ethnic and political group. And we have taken these definitions, but we also ask ourselves: what is a genocide for Indigenous people? And in the end, this must be reflected in the ruling and in the reparation, and this is where we haven´t been able to get to.⁸⁰

Indeed, Guatemala’s transitional justice processes, such as the National Reparation Programme, were heavily marked by a dominant Euro-Western legal positivist approach in terms of truth, justice and reparation, ignoring the visions and needs of Indigenous people, despite their being the majority of victims of the conflict.⁸¹ Cristian Otzin’s critical reflections about the fact that the key legal concepts of transitional justice are rooted in international law, which is strongly dominated by eurocentrism and legal colonialism, is increasingly recognised in transitional justice scholarship.⁸²

In the case of Guatemala, it is important to highlight the progressive strengthening of the role of Indigenous lawyers and women´s groups as direct claimants of their rights in respect of the multiple and hidden violence they have faced. Ana López, founder and current director of Chomijá Association, a group of female Indigenous litigators, has shown that it is possible to embark on innovative strategic litigation pathways concerning serious human rights violations in the context of armed conflict, focusing on cases of sexual violence against Indigenous women, in which the voices of victims have a new role, such as the Sepur Zarco case.⁸³

Indigenous authorities as legal subjects and right-bearers to land

The failure to implement Indigenous peoples’ rights at the domestic level has been the subject of much legal and political debate among scholars and Indigenous movements. The interviews shed a unique light on the major challenge of implementing Indigenous peoples’ rights in Guatemala: even though the rights of Indigenous authorities are enshrined in international, constitutional and domestic legal provisions, their actual existence had to be proven through a long legal battle in the different fields of civil, criminal, procedural and administrative law.

Articles 58 and 66 of the Guatemalan Constitution are the core articles which commit the state to recognising the cultural identities of the different ethnic groups and to respecting and promoting their forms of life, customs, traditions, forms of social organisation, dress and languages.⁸⁴ Subsequently, the Agreement on Identity and Rights of Indigenous People, signed in 1995, promised legal and constitutional recognition of Indigenous organisational forms, customary law, languages, spirituality, sacred sites and traditional costumes, while the ratified ILO Convention 169 of 1989 stipulates that Indigenous Peoples may exercise their own institutions and forms of social organisation.

In 2002, as part of the country´s decentralisation process, the Guatemalan Municipal Code recognised Indigenous Mayoralties, Indigenous institutions present in some parts of Guatemala whose functioning could be traced back to the Spanish colonial government’s system of indirect rule.⁸⁵ Article 56 recognises community mayors as entities representative of their communities, especially for decision-making and for liaison with the municipal government. The article also recognises these mayors ‘according to the uses, norms, and traditions of the communities’, but their appointment is in the hands of the municipal mayor, an office occupied mostly by ladino people. Likewise, article 55 establishes that municipalities must ‘recognize, respect, and promote Indigenous Mayoralties, when these exist, including their own ways of administrative functioning’. Although these provisions mark ‘a turn in the history of municipal legislation’,⁸⁶ they should be seen as weak legal recognition, given that state agencies have divided, politicised and co-opted these local Indigenous structures.⁸⁷

Despite these normative recognitions, all the Indigenous lawyers interviewed highlighted the main legal challenge they faced during the litigation of Indigenous claims as being the absence of procedural legitimacy for Indigenous authorities to intervene in the legal cases involved. As noted by Juan Castro, the above-described legal recognition was in reality a nominal, distant and abstract recognition of rights. Amílcar Pop stated that in practice, the Indigenous subject of rights did not exist:

Indigenous peoples and communities have rights, but who are they? It´s nowhere to be found. Likewise, civil, criminal, procedural and administrative law denies their existence.⁸⁸

The main objective of the juridical legal action of the first generation of Indigenous lawyers was therefore to demand recognition of Indigenous authorities and groups as procedural subjects with sufficient legitimacy and autonomy to act in the national judicial regime. To reach this key goal, several constitutional, administrative, civil and criminal actions were launched progressively over time, unfolding in parallel legal actions. They comprised a wide repertoire of multifaceted legal actions, which resulted in one of the most significant political achievements in Guatemala: the legal declaration of the existence of Indigenous authorities. In fact, Amilcar Pop compared this long-term legal battle in the Guatemalan courts to the famous Valladolid Debate (1550–1551) between Bartolomé de las Casas and Sepúlveda, during which the Spanish colonisers debated the existence (are they humans?) and status (do they have a soul?) of the Indians in their colonies.

In this article we want to highlight four emblematic cases which were discussed during the different interviews. The first and ground-breaking case was the criminal case against Juan Zapeta, the Indigenous mayor of Santa Cruz del Quiché, who was irregularly prosecuted in 2003.⁸⁹ The ruling which declared Juan Zapeta innocent recognised the capacity in which the defendant acted, namely, in representation of a specific Indigenous community and in exercising the right to administer justice as part of their Indigenous justice system. All the interviewees stressed the importance of this first such judgment since the signing of the Peace Agreements and of the subsequent court decisions recognising the existence and status of an Indigenous authority as a subject of state law. As Lucía Xiloj, independent Indigenous lawyer, explains:

[C]urrently it is enough for the Community Assembly to name its representatives so they can go to court and do not have to comply with another requirement. Ten years ago, this was not allowed, because there was a strong questioning whether Indigenous authorities could or could not go directly to court. Now, it´s done.⁹⁰

These first legal decisions had a widespread domino effect among Indigenous communities across the country. With the support of the various Indigenous lawyers’ associations, many Indigenous communities developed internal processes to restructure their authority system to strengthen legal and administrative claims aimed at obtaining official recognition of their status. In fact, communities started to recognise their Indigenous authorities in written documents, which were used to claim public accreditation of their legal standing to initiate legal proceedings and act before the state judiciary in a range of legal claims, such as for the restitution of dispossessed land.

A second emblematic but complex case is the ruling by the Court of Appeal of the Civil Branch in 2012 about land restitution to the Kakchiquels Indigenous communities of Chuarrancho located in the Province of Guatemala, which is linked to the granting of a mining license by the municipality to the mining company Motagua Resources so that they could start exploration and extractive operations. This appeal ruling rejected the initial arguments about the lack of legitimacy of the Indigenous authority to intervene against this mining license in their territory. Instead, the Court of Appeal recognised the Indigenous authority as a procedural subject and declared its right to communal property based on a property title of 1868, which had been ignored by the municipality.⁹¹

While in administrative matters, a third emblematic action was the Copones case, in which Q’eqchi’ communities of Ixcán municipality, located in El Quiché department, fought in defence of their territory, from which they had been dispossessed by the Ixcán municipality in the second wave of land robbery in 1904. After recovering their ancestral authority structure and obtaining the appropriate recognition of its existence through other legal actions, in 2016 the communities filed an action of protection against the Public Land Registry ‘for giving land tenure titles of their ancestral lands by notarial recording in favour of third parties and requested the Constitutional Court to recognise their right to the historical possession of land by restoring their violated rights’.⁹² As noted by Juan Castro and Amílcar Pop, this case is a good example of multifaceted strategic litigation, during which legal actions were activated in different legal domains to obtain recognition of several collective Indigenous rights.

At the constitutional level, a relevant legal precedent was established in the ruling issued in 2020 by the Constitutional Court in favour of the Mayan Ixil people of Nebaj, which restituted property rights to lands confiscated by the state in 1983 and 1984 for the creation of ‘Poles of Development’ (Polos de Desarrollo) or military camps where internally displaced people underwent ideological military re-education.⁹³ In 2010, the Guatemalan State Land Fund notified the Ixil people that the lands they inhabited were no longer theirs. After seven years of unsuccessful state proceedings, the Ixil community filed an action of protection, which was positively resolved by the Constitutional Court. Miguel León, Indigenous authority of Nebaj, stated in the media: ‘You can imagine the joy that brings the fact of being able to gain life back, because regaining the land is regaining life, it means regaining the legal certainty that we have’.⁹⁴ Similarly, Lucía Xiloj stressed that ‘the key goal of litigation of collective rights of Indigenous peoples must be the strengthening of their people and their authorities as subjects of power’⁹⁵.

This legal recognition changed the positionality of Indigenous peoples in the Guatemalan domestic legal and judicial system as from now on they can, through their Indigenous authorities and with the legal support of Indigenous lawyers and anthropologists as expert witnesses, bring their particular views and practices to court and offer legal proof and evidence. However, as Juan Castro critically stated during the interview: ‘They declared us [Indigenous authorities] alive but ignored our relationship with the land’.⁹⁶ So, the emerging legal battles and claims in which Indigenous lawyers are involved are Indigenous ontologies of water and land, which are increasingly present in the strategic litigation concerning Indigenous peoples’ rights and extractivism in their territories.

Towards the recognition of Indigenous legal ontologies of water and land

Although the Peace Agreements of 1996 were regarded, both nationally and internationally, as a key political and judicial instrument towards democratic transition, among the interviewees there was a common perception and critique that they were in fact a functional arrangement which opened the door to promoting and implementing neoliberal economic reforms so as to facilitate extractive projects in the country. For example, Benito Morales notes:

[T]he [Peace] Agreement was focused on creating political conditions to guarantee the conduct of new businesses with emphasis on mining and hydroelectric dam projects (…) That is the threat to peace.⁹⁷

Legal actions litigated by Indigenous lawyers to defend the individual and collective Indigenous rights of communities therefore not only challenge the Guatemalan state but also its private sector, a key player in the political and economic setup of the state, which is articulated in different spaces, among them the Coordinating Committee of Agricultural, Merchant, Industrial and Financial Associations (CACIF). According to Eddie Cux, an Indigenous lawyer specialising in litigation on corruption and a member of the organisation Acción Ciudadana (Citizen Action):

[T]hese power settings shape an extractive oligarchy, since it is in these co-opted spaces that decisions regarding natural resources, hydro and electric resources are taken (…) they have full control over what type of authorisations and licenses the state will grant.⁹⁸

In fact, it has been calculated that this sector is present in 34 official decision-making entities regarding the use and governance of natural resources in the country.⁹⁹ Given the avalanche of extractive projects in Indigenous territories that provoked new human rights violations of the Indigenous population, a new phase in the judicialisation of Indigenous peoples’ rights started in the country.¹⁰⁰ The main legal instrument in the litigation was ILO Convention 169 and the enshrined FPIC.

Interestingly, however, during the interviews the Indigenous lawyers explained that they learned about the existence of this key international human rights instrument through the many training programmes run by international cooperation agencies, such as MINUGUA, as part of the implementation of the Peace Agreements. Indeed, in the beginning it was a challenge for these Indigenous political ontological knowledge brokers to fully grasp the content and legal scope of the Convention. However, it became a key legal tool in their strategic litigation against violations of the human rights of Indigenous communities by the extractive projects. Their litigation strategies have had to face two fronts at the same time. On the one hand, they needed to engage in extensive defence against the increasing waves of criminalisation of Indigenous leaders and authorities because of their resistance and opposition to the projects. On the other, they had to create strategies and proper legal arguments for stopping the projects where rural communities organised auto-consultas (local plebiscites) invoking their right to FPIC.

Inspired by the Colombian and Inter-American jurisprudence on FPIC, Indigenous lawyers started to diversify their arguments so as to demonstrate the multidimensional effects of these types of extraction activity on Indigenous communities. Cristian Otzín and Lucía Xiloj explained that they tried to position new lines of argument in their litigations, in particular demanding recognition of the collective right to territory, ecological balance and the human right to water. However, after a long battle lasting several years the rulings of the Constitutional Court recognised only the violation of FPIC. As the interviewees related, even in these successful legal cases the rulings tasted bittersweet because in practice none of the denounced extractive projects was cancelled. On this point, Pop comments with disappointment:

[R]egarding the right to consent, we have received severe blows coming from all sides. In fact it is more, I think is not a real right or something that can be effectively exercised, we are going backwards regarding this right [FPIC].

Reflecting on this issue, Tiú comments:

[W]hat I have seen is that several cases have been won, but this stays at the level of lawyers’ speeches (…) there is important progress with strategic litigation, but it does not have a big impact on the system imposed.

Although the courts have not yet recognised the collective right to territory, as enshrined in ILO Convention 169, as a valid legal protection standard against extractive projects in Indigenous territories, the interviewees recognise that these legal arguments and battles have strengthened the political debates and campaigns, internal community organisation and people’s identity as being Indigenous.

As described in the introduction, currently a new and innovative legal strategy devised by the Indigenous lawyers to protect the water and lands is unfolding across the country. For decades, international Indigenous peoples’ movements have been expressing radically different ways of knowing and being in the world, in contrast with the neoliberal capitalist commodification of nature, at international summits about climate change and development. For example, the 30-year-old Kari-Oca Declaration and Indigenous Peoples Earth Charter (1992), arising from the United Nations Conference on Environment and Development (UNCED) in Brazil, also known as the Earth Summit, states:

The eurocentric notion of ownership is destroying our peoples. We must return to our own view of the world, of the land and of development. The issue cannot be separated from Indigenous People’s rights. (art. 77)

The Indigenous Peoples’ Water Declaration (2003), published at the Third World Water Forum in Kyoto (Japan), further explains Indigenous peoples’ relationship to water:

We recognize, honor and respect water as sacred and sustains all life. Our traditional knowledge, laws and ways of life teach us to be responsible in caring for this sacred gift that connects all life. (art. 2)

What is innovative is that in the case of Guatemala, these radically different ways of knowing and being are entering the legal arena through strategic litigation led by these Indigenous lawyers. The ground-breaking ruling of Guatemala’s Constitutional Court on the Water Bill of 2019 results from a claim filed by a group of lawyers led by Juan Castro and Jovita Tzul Tzul on behalf of several Indigenous authorities from different Mayan groups. They not only claimed the normative void regarding water regulation, they also argue that Indigenous peoples, the majority of Guatemala’s population, have a spiritual and cultural relationship with water because they ‘conceive it as a living being, that is: as a sacred and living entity to be respected, as well as a source of life for the human being and other forms of life’.¹⁰¹ Indigenous authorities also argued that ‘the water is represented by nahual Imox, the protector spirit that manifests itself in water, rain, the lakes and the sea, and falls from the sky, resting in the bowels of the earth’.¹⁰²

With this legal claim, the Indigenous lawyers question the dominant anthropocentric Euro-Western human rights paradigm in which water is legally conceptualised as a commodity, a resource with economic value. The litigators proposed that the Constitutional Court recognise the visions of Indigenous peoples about water as a legally binding criterion. They also requested the creation of a new regulation on the human right to water which included Indigenous conceptions, according to which ‘water is a live being that has cycles, that connects to the cosmos, that has a sacred nature for Mayan and Nahual people’. As Juan Castro further explained in the above-mentioned international symposium of October 2023:

When we took the case of unconstitutionality to the Court, there were several dialogues between Indigenous authorities, and we understood from our own languages that the concepts of collective appropriation do not exist. In our languages it is not possible to translate my river, my lake, because when we do it, or try to do it, what we say is I am river, I am lake, you cannot say my lake. For example, I say I am water, I cannot say it is my river, it is my water.¹⁰³

In the end, the Court ruled that there were defects in the technical and procedural formulation of the charges and declined to find that the contested articles were unconstitutional, but it did order Congress to adopt a new Water Bill that reflected the singular, material and spiritual perception of Indigenous peoples regarding water. However, this order is still pending effective compliance.

Final reflections

Drawing on interdisciplinary qualitative and collaborative research with Indigenous lawyers, experts, and legal activists who are involved in the legal defence of the rights of Indigenous peoples violated by extractive development projects, this article shows that the case of Guatemala is a high-value reference in the analysis of the practical counter-hegemonic exercise of law. The perspectives and experiences of Indigenous lawyering include bitter moments and deep learnings about using and transforming the law as a tool to be and to exist as Indigenous beings in a country marked by a racialised colonial and neoliberal legal architecture. Overall, Indigenous lawyering is a unique agency with a direct voice connecting worlds and plurilegal realities before the courts as part of their ongoing legal and political struggle for self-determination.

Drawing on the described experiences of these Indigenous litigators, we invite non-Indigenous lawyers and legal scholars to reflect deeply about the racial colonial legacies inscribed in legal theories and practices that have given birth to oppressive judicial systems and hegemonic anthropocentric human rights. They are also invited to ‘not be afraid of plurilegal water realities and should start engaging with these ontologically different concepts and practices’,¹⁰⁴ even though they might create legal discomfort among Euro-Western trained conventional and cause-militant-engaged lawyers involved, for example, in the Rights of Nature movement. Lawyers should not take for granted what water means, nor how to understand the land, nor how to protect it.

As the Indigenous lawyer Juan Castro further explains:

The Indigenous peoples of Mesoamerica, with more than 5,000 years of history, have developed epistemological relations and knowledge (…) We have built a relationship with the environment in which we understand ourselves as subject to subject. And when I say subject to subject, I mean not only between human beings, but subject to human beings and subject to every other form of life. And not subject-object. And that subject-subject relationship gave a framework of mutual protection, a duality of I take care of you and you protect me.¹⁰⁵

Finally, the narratives of these Guatemalan Indigenous lawyers also give a critical reading to the emerging debate about granting rights to different natural elements, as many proponents of this legal movement tend to romanticise and essentialise Indigenous practices.¹⁰⁶ These proponents should neither ignore nor overlook the harsh legal reality that in countries such as Guatemala, with a majority Indigenous population, Indigenous lawyers first need to litigate for years before their Indigenous authorities are able to exist legally in their domestic legal system. Only then are they able to defend the rivers, mountains and territories with which they have an interdependent relationship.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by a Starting Grant from the European Research Council titled ‘RIVERS – Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation’ [Grant Agreement 804003](2019-2025), under the European Union’s Horizon 2020 Research and Innovation. programme.

Notes on contributors

Lieselotte Viaene

Lieselotte Viaene is a Belgian-Flemish anthropologist with a PhD in Law (2011, Ghent University, Belgium), with 20 years of mixed academic and practitioner experience working on the issues of armed conflict, transitional justice, indigenous peoples’ rights and extractivism in Peru, Guatemala, Ecuador, Colombia and Nepal. Since 2019, she is developping her ERC project titled RIVERS – Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation at the University Carlos III of Madrid (Spain).

María Ximena González-Serrano

María Ximena González-Serrano is a Colombian lawyer with more than 15 years of experience in strategic litigation and socio-legal research on ethnic rights in Colombia. She is currently developping her PhD at the University Carlos III of Madrid (Spain) and has been a doctoral researcher in the ERC research project RIVERS – Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation.

Notes

1 Seminar ‘A Critical Look at Water Disputes: A Dialogue between Guatemala and Colombia’, Guatemala City, 23 November 2021, organised by the ERC RIVERS project in collaboration with the University Rafael Landívar. Youtube: https://www.youtube.com/watch?v=d-O9c3WXyGI (accessed March 3, 2023).

2 Constitutional Court of Guatemala, Ruling November 7, File 452–2019, (2019) 8, http://138.94.255.164/Sentencias/843425.452-2019.pdf (accessed March 3, 2023).

3 For a broader analysis of Guatemala’s legal debates about water regimes and the human right to water see: Diego Antonio Padilla Vassaux, ‘Contextualizando el debate sobre las leyes sobre agua y el derecho humano al agua en Guatemala’, Ánalisis Jurídico Político 5 (9) (2023): 65–88.

4 Edwin Rekosh, Buchko Kyara, and Terzieva Vessela, Pursuing the Public Interest. A Handbook for Legal Professional and Activists (Columbia Law School, 2001); Helen Duffy, Strategic Human Rights Litigation: Understanding and Maximising Impact (Hart Publishing, 2018); Open Society Justice Initiative, ‘Global Human Rights Litigation Report’ (2018), https://www.justiceinitiative.org/uploads/4e9483ab-a36f-4b2d-9e6f-bb80ec1dcc8d/litigation-global-report-20180428.pdf (accessed March 3, 2023).

5 Comisión de Esclarecimiento Histórico (CEH), Guatemala, memoria del silencio, Tz’inil na’ tab’al (Guatemala: CEH, 1999), https://memoriavirtualguatemala.org/wp-content/uploads/2020/12/Guatemala-Memoria-del-Silencio.pdf (accessed March 3, 2023), 31–5.

6 Ibid., 43.

7 Jo-Marie Burt, Policy Brief: Strategic litigation in Cases of Gross Human Rights Violations in Guatemala: Impact and Lessons Learned (Guatemala: Impunity Watch, 2021).

8 Among them the expert opinion of Marta Elena Casaús in the emblematic trial of former General Ríos Montt. The recordings of all the expert opinions proposed by the parties are available at: https://www.plazapublica.com.gt/content/peritajes-en-el-juicio-por-genocidio (accessed March 3, 2023).

9 More information available at: https://nimajpu.org/ (accessed March 3, 2023).

10 More information available at: https://m.facebook.com/people/Bufete-para-Pueblos-Ind%C3%ADgenas/100064882262740/ (accessed March 3, 2023).

11 More information available at: https://www.facebook.com/people/Asociacion-Chomija/100063455352764/ (accessed March 3, 2023).

12 Jeremy Gilbert, ‘Indigenous Peoples and Litigation: Strategies for Legal Empowerment’, Journal of Human Rights Practice 12 (2020): 301–20.

13 Gilbert, ‘Indigenous Peoples and Litigation’; Stuart Kirsch, ‘Juridification of Indigenous Politics’, in Law Against the State: Ethnographic Forays into Law’s Transformations, ed. Julia Eckert et al. (Cambridge: Cambridge University Press, 2012), 23–43; Rachel Sieder, ‘The Juridification of Politics’, The Oxford Handbook of Law and Anthropology (Oxford: Oxford University Press, 2020).

14 Rachel Sieder, Cultures of Legality: Judicialization and Political Activism in Latin America (Cambridge: Cambridge University Press, 2010); Sieder, ‘The Juridification of Politics’; Stuart Kirsch, ‘Dilemmas of an Expert Witness in the Amazon’, Working Paper No. 428 (Kellogg Institute for International Studies, University of Notre Dame, 2018), https://kellogg.nd.edu/sites/default/files/working_papers/Kirsch%20WP%20428%20FINAL.pdf (accessed March 3, 2023).

15 Sonia Lawrence and Signa Daum Shanks, ‘Indigenous Lawyers in Canada: Identity, Professionalization, Law’, Dalhousie Law Journal 38, no. 2 (2015): 503–24.

16 Lieselotte Viaene, ‘Can Rights of Nature Save us from the Anthropocene Catastrophe? Critical Reflections from the Field on the Emerging Ecological Jurisprudence’, Asian Journal of Law and Society 9 (2022): 187–206.

17 Lieselotte Viaene, ‘Indigenous Water Ontologies, Hydro-development and the Human/more-than-human Right to Water: a Call for Critical Engagement with Plurilegal Water Realities’, Water 13, no. 12 (2021).

18 Keebet von Benda-Beckmann and Bertram Turner, ‘Anthropological Roots of Global Legal Pluralism’, in The Oxford Handbook of Global Legal Pluralism, ed. Paul Schiff Berman (New York: Oxford University Press, 2020), 138.

19 Chas Jewett and Mark Garavan, ‘Water is Life – an Indigenous Perspective from a Standing Rock Water Protector’, Community Development Journal 49 (2018).

20 John Law, ‘On Sociology and STS’, Sociological Review 56, no. 4 (2008): 636–7.

21 Viaene, ‘Indigenous Water Ontologies’.

22 Von Benda-Beckmann and Turner, ‘Anthropological Roots’, 139.

23 María Ximena González-Serrano and Lieselotte Viaene, ‘La acción jurídica indígena en Guatemala. Voces de resistencia y conexión de mundos antes las Cortes’, in Aguas Turbias: Extractivismo neoliberal, acción jurídica indígena y transformación del Estado en Guatemala, ed. Viaene Lieselotte and Xon María Jacinta (Guatemala: RIVERS ERC Project, 2022).

24 This research is part of the project RIVERS-Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation (2019–2025), financed by a Starting Grant from the European Research Council (ERC), with Guatemala, Colombia, Nepal and the UN human rights system as research contexts. In Colombia, the project has been collaborating with Indigenous Arhuaca judge Belkis Izquierdo of the Special Jurisdiction of Peace (JEP), the justice component of the Comprehensive System of Truth, Justice, Reparation and Non-Repetition created by the Peace Agreements between the Colombian government and the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP) in 2016. See Teaser ERC RIVERS project documentary COLOMBIA: https://www.youtube.com/watch?v=2uyJh3tHAFY&t=34s. In Nepal, the project is collaborating with the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), which has been involved in a successful joint complaint, together with the FPIC and Rights Forum from Langjung, to the Complaints Mechanism of the European Investment Bank (EIB) regarding the 220kv Marsyangdi Corridor high-voltage transmission line and associated hydropower sector development. See also: Lieselotte Viaene, ‘Indigenous legal expertise to defend Indigenous Peoples’ Rights in Third Pole country Nepal’, Jindal Global Law Review, 14, no. 2 (2023 forthcomming). The RIVERS project is also producing a Podcast Weaving Waters which creates a mosaic that brings together the voices of Indigenous filmmakers, judges, lawyers, journalists and academics from different parts of the world. One of the podcast episodes is focused on Indigenous Lawyers. Available at: Weaving Waters Podcast Spotify: https://open.spotify.com/show/3er65uvRd5ruX5EMnrsLyU?si=01c63c2e93a84e6e. Accessed 26 October 2023.

For more information about this research project: www.rivers-ercproject.eu

25 Lieselotte Viaene, La Hidroeléctrica Xalalá en territorios maya q’eqchi’ de Guatemala ¿Qué pasará con nuestra tierra y agua sagradas? Un análisis antropológico-jurídico de los derechos humanos amenazados (Herent-Belgium: Ghent University, 2015).

26 More information is available at: https://comunitariapress.wordpress.com/2015/03/24/un-preso-politico-mas-rigoberto-juarez-defensor-del-territorio-2/ (accessed March 3, 2023).

27 Seminar ‘A Critical Look to Water Disputes’.

28 International Symposium ‘A Critical Look at Water Litigation: A Dialogue between Guatemala and Colombia’, organised by the ERC RIVERS research project in collaboration with the mandate holder of the UN Special Rapporteur on the human rights to safe drinking water and sanitation, Madrid, 2023.Youtube: https://rivers-ercproject.eu/symposium-Indigenous-peoples-water/ (accessed March 3, 2023).

29 Ture Kwame and Charles Hamilton, Black Power. The Politics of Liberation in America. (New York: Random House, 1967); Barnor Hesse, ‘Discourse on Institutional Racism: The Genealogy of a Concept’, in Institutional Racism in Higher Education, ed. Ian Law, Deborah Phillips, and Laura Turney (Trent: Trentham Books, 2004), 131–47.

30 Aura Cumes, ‘Aquí́ no hay racismo, aquí́́ hay interculturalidad’, in Racismo en Guatemala (Guatemala: Siglo XXI Editores, 2004).

31 Amanda Pop Bol, ‘Racismo y machismo: deshilando la opresión’, in Identidad: rostros sin máscara, comps. Morna Macleod and M. Luisa Cabrera Pérez-Armiñan (Guatemala: Oxfam Australia, 2000).

32 Comisión de Esclarecimiento Histórico, Guatemala, memoria del silencio, 34.

33 Raquel Yrigoyen Fajardo, ‘El debate sobre el reconocimiento constitucional del derecho indígena en Guatemala’, América Indígena Vol. LVIII, No. 1–2 (1999).

34 Rigoberto Quemé, ‘El racismo en Guatemala’, in Diagnóstico del racismo en Guatemala: Investigación interdisplinaria y participativa para una política integral por la convivencia y eliminación del racismo, ed. Marta Elena Casaús and Amilcar Dávila, Vol. IV (2006), 31.

35 Emma Chirix, Estudio sobre racismo, discriminación y brechas de desigualdad en Guatemala. Una mirada conceptual (Mexico: CEPAL, 2019).

36 Marta Elena Casaús, La metamorfosis del racismo en Guatemala (Guatemala: Editorial Cholsamaj, 1998); Chirix, Estudio sobre racismo.

37 Aróstegui Mely González, ‘Cultura de la resistencia. Concepciones teóricas y metodológicas para su estudio’, ISLAS 127 (2017): 20–41.

38 Chirix, Estudio sobre racismo, 41.

39 Demetrio Cojtí, Ub'anik ri una'ooj uchomab'aal ri maya tinamit (Guatemala: Cholsamaj, 1995); Marta Elena Casaús, ‘El Racismo y la Discriminación en el Lenguaje Político de las Elites Intelectuales en Guatemala’, Discurso & Sociedad 3, no. 4 (2009): 592–620.

40 Eve Darian-Smith and Peter Fitzpatrick, eds., Laws of the Postcolonial (Michigan: The University of Michigan Press, 1999); Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005); Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002); John Comaroff, ‘Colonialism, Culture and the Law’, Law and Social Inquiry 26, no. 2 (2001): 305–14; Renisa Mawani, ‘Law and Colonialism: Legacies and Lineages’, in The Handbook of Law and Society, ed. Austin Sarat and Patricia Ewick (John Wiley & Sons, 2015), 418–32.

41 Natsu Taylor Saito, ‘Tales of Color and Colonialism: Racial Realism and Settler Colonial Theory’, Florida A&M University Law Review 10 (2014), https://commons.law.famu.edu/famulawreview/vol10/iss1/3 (accessed March 3, 2023); Pedro Garzón, ‘Pluralismo jurídico, derechos indígena y colonialidad jurídica’, Ius Inkarri Revista e la Facultad de Derecho y Ciencia Política 8 (2019): 215–26; María Ximena González-Serrano, Digno Montalván-Zambrano and Viaene Lieselotte, ‘Hacia la descolonización del régimen extractivo: patrones y límites de la judicialización de conflictos mineros’, Iconos-Revista de Ciencias Sociales 72 (2022): 97–116; Viaene, ‘Indigenous Water Ontologies’.

42 Benito Morales is an Indigenous lawyer and politician, who has collaborated with different organisations, among them the Council of Mayan People and Fundación Rigoberta Menchú. He was also a presidential candidate for the political party Convergencia. Benito Morales, interview by the authors, 8 July 2021.

43 Lawrence and Daum Shanks, ‘Indigenous Lawyers in Canada’.

44 Duffy, ‘Strategic Human Rights Litigation’; Gilbert, ‘Indigenous Peoples and Litigation’; Salvador Herencia Carrasco, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap between Legal Victories and Social Change’, Quebec Journal of International Law (2015): 199–220; Sandra Carvalho and Eduardo Baker, ‘Strategic Litigation Experiences in the Inter-American Human Rights System’, Sur-International Journal on Human Rights 20 (2014): 449–59.

45 Duffy, ‘Strategic Human Rights Litigation’.

46 Malcom Langford, ‘The Impact of Public Interest Litigation: The Case of Socio-economic Rights’, Australian Journal of Human Rights 27, no. 3 (2021): 505–31; Andreas Fischer-Lescano, ‘From Strategic Litigation to Juridical Action’, in Transnational Legal Activism in Global Value Chains. The Ali Enterprises Factory Fire and the Struggle for Justice, ed. Miriam Saage-Maas et al., Interdisciplinary Studies in Human Rights 6 (Springer, 2021), 299.

47 Duffy, ‘Strategic Human Rights Litigation’; Gilbert, ‘Indigenous Peoples and Litigation’.

48 Amilcar Pop was also founder of the first Mayan Student Association at the Public Universidad de San Carlos in the early 1990s and has been the main litigator in several emblematic cases regarding FPIC. He was a deputy in Congress for the WINAQ political movement.

49 Amilcar Pop, interview by the authors, 21 September 2021.

50 Myriam Chavajay, interview by the authors, 6 December 2021.

51 Amilcar Pop, interview, 2021.

52 Romeo Tiu, interview by the authors, 12 July 2021.

53 Pedro Ixchíu, interview by the authors, 7 July 2021.

54 Morales, interview, 2021.

55 Stuart Scheingold, The Politics of Rights. Lawyers, Public Policy, and Political Change (Ann Arbor: Michigan University Press, 2004); Austin Sarat and Stuart Scheingol, eds., Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press, 1998); Kieran McEvoy, Louise Mallinder and Anna Bryson, Lawyers in Conflict and Transition (Cambridge: Cambridge University Press, 2022).

56 Orlando Aragón Andrade, ‘Intercultural Translation and the Ecology of Legal Knowledges in the Experience of Cherán, Mexico: Elements for a New Critical and Militant Legal Practice’, Latin American and Caribbean Ethnic Studies 15 (2020): 86–103; Irán Guerrero Andrade, ‘La abogacía activista en México. Un análisis de la práctica del derecho de las abogadas y los abogados de las ONG’s de derechos humanos en contextos de excepción’ (PhD diss., México FLACSO, 2017); Francisco Vértiz, ‘Los abogados populares y sus prácticas profesionales. Hacia una aplicación práctica de la crítica jurídica’, Crítica Jurídica 35 (2013): 251–74.

57 McEvoy et al., Lawyers in Conflict and Transition, 7.

58 Sally Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’, American Anthropologist 108 no. 1 (2006): 38–51.

59 Wendy López, interview by the authors, 23 September 2021.

60 Merry, ‘Transnational Human Rights’.

61 Ricarda Flemmer, ‘Stuck in the Middle: Indigenous Interpreters and the Politics of Vernacularization in Peru’, The Journal of Latin American and Caribbean Anthropology 23 (2018): 521–40.

62 Thomas Sikor et al., ‘Brokering Justice: Global Indigenous Rights and Struggles over Hydropower in Nepal’, Canadian Journal of Development Studies (2018): 1–19.

63 Flemmer, ‘Stuck in the Middle’, 522.

64 Chas Jewett and Mark Garavan, ‘Water Is Life – An Indigenous Perspective from a Standing Rock Water Protector’, Community Development Journal 54, no.1 (2019): 42–58.

65 Ixchíu, interview, 2021.

66 McEvoy et al., Lawyers in Conflict and Transition, 3.

67 Cristian Otzín, interview by the authors, 29 November 2021.

68 López, interview, 2021.

69 Lucy Claridge, ‘Litigation as a Tool for Community Empowerment: The Case of Kenya’s Ogiek’, Erasmus Law Review 1 (2018): 57–66.

70 In Guatemala there are 22 Maya ethnic linguistic communities, as well a Chorti community and afro-descended Garifuna communities.

71 Otzín, interview, 2021.

72 Fischer-Lescano, ‘From Strategic Litigation’.

73 Barbora Bukovska, ‘Perpetrating Good: Unintended Consequences of International Human Rights Advocacy’, Revista Internacional de Direitos Humanos 9 (2008): 6–21.

74 Duffy, ‘Strategic Human Rights Litigation’.

75 Stuart Kirsch, ‘Dilemmas of an Expert Witness’; Stuart Kirsch, ‘Dilemas del perito experto: derechos indígenas a la tierra en Surinam y Guyana’, Desacatos: Revista de Ciencias Sociales, 57 (2018), https://desacatos.ciesas.edu.mx/index.php/Desacatos/issue/view/106 (accessed March 3, 2023).

76 Chirix, Estudio sobre racismo.

77 Val Napoleon, ‘Thinking About Indigenous Legal Orders’, in Dialogues on Human Rights and Legal Pluralism, ed. Rene Provost and Colleen Sheppard (Dordrecht, The Netherlands: Springer, 2013), 240.

78 Otzín, interview, 2021.

79 Ibíd.

80 Ibíd.

81 Lieselotte Viaene, ‘Life is Priceless: Mayan Q’eqchi’ Voices on Guatemalan National Reparations Program’, International Journal of Transitional Justice 4 (2009): 4–25.

82 Laurel Fletcher and Harvey Weinstein, ‘How Power Dynamics Influence the “North-South” Gap in Transitional Justice’, Berkeley Journal of International Law 36, no.2 (2018): 190–217; Brinton Lykes and Hugo Van der Merwe, ‘Critical Reflexivity and Transitional Justice Praxis: Solidarity, Accompaniment and Intermediary’, International Journal of Transitional Justice 13 (2019): 411–6; Belkis Izquierdo and Lieselotte Viaene, ‘Decolonizing transitional justice from Indigenous territories’, Por la Paz 34 (2018); Lieselotte Viaene; Peter Doran and Jonathan Lejiblad, ‘Editorial Special Section: Transitional Justice and Nature: a curious silence’, International Journal of Transitional Justice, 17, no. 1 (2023): 1–14.

83 Impunity Watch, Alianza Rompiendo el Silencio y la Impunidad, ECAP, MTM, UNAMG, Cambiando el rostro de la justicia. Las claves del litigio estratégico del Caso Sepur Zarco (Guatemala: Impunity Watch and Alianza Rompiendo el Silencio y la Impunidad, 2017).

84 Article 58 of the Guatemalan Constitution recognises ‘the right of people and communities to a cultural identity according to their values, language, and customs’. Article 66 indicates that ‘Guatemala is made up of diverse ethnic groups including Indigenous groups of Mayan origin. The State recognizes, respects, and promotes ways of life, customs, traditions, forms of social organization, the use of the Indigenous dress in men and women, languages, and dialects.’

85 Sieder, ‘The Juridification of Politics’.

86 Carlos Ochoa, Diálogo: señal de nuestra existencia. Retal Qatzij. Concepción, uso y manejo del diálogo por las autoridades indígenas (Guatemala: Asociación de Investigación y Estudios Sociales, 2014), 8.

87 Shadow Report PIDESC, 2014, 14.

88 Amilcar Pop, interview, 2021.

89 Also see this article: https://www.plazapublica.com.gt/content/dos-justicias-en-las-cortes (accessed March 3, 2023).

90 Lucia Xiloj, interview by the authors, 7 July 2021.

91 Appeal Court of the Civil Branch, Amparo No 01044-2012-363, 16 October 2012.

92 Association of Lawyers and Mayan Notaries (2017).

93 For more information, see Centro de Estudios Integrados de Desarrollo Comunal, Guatemala. Polos de Desarrollo. El caso de la Desestructuración de las Comunidades Indígenas (México: Editorial Praxis, 1998).

94 Cultural Survival, ‘Pueblos mayas Ixiles y Ch’orti’s recuperan certeza jurídica sobre sus tierras’ (2020), https://www.culturalsurvival.org/news/pueblos-mayas-ixiles-y-chortis-recuperan-certeza-juridica-sobre-sus-tierras#:~:text=El%2013%20de%20julio%20de,otra%20vez%20al%20t%C3%ADtulo%20original (accessed March 3, 2023).

95 Xiloj, interview, 2021.

96 Juan Castro, interview by the authors, 24 November 2021.

97 Morales, interview, 2021.

98 Eddie Cux, interview by the authors, 8 July 2021.

99 Padilla Diego, ‘El extractivismo (neo)liberal en Guatemala. Una mirada histórica crítica a la formación del Estado y la explotación del agua’, in Aguas Turbias: Extractivismo neoliberal, acción jurídica indígena y transformación del Estado en Guatemala, ed. Xon María Jacinta and Viaene Lieselotte (Guatemala: RIVERS ERC Project, 2022), 15–47.

100 Sieder, ‘The Juridification of Politics’, 2020.

101 Constitutional Court of Guatemala, Ruling November 7, File 452–2019, (2019) 8.

102 Ibíd.

103 International Symposium ‘A critical look at water litigation’.

104 Viaene, ‘Indigenous Water Ontologies’, 1.

105 Ibíd.

106 Viaene, Can Rights of Nature Save us from the Anthropocene Catastrophe? 187–206; Minhea Tanasescu, Understanding the Rights of Nature. A Critical Introduction (Bielefeld: Transcript, 2022); Elizabeth Macpherson, Alex Borchgrevink, Rahul Ranjan and Catalina Vallejo Piedrahíta, ‘Where ordinary laws fall short: "Riverine rights" and constitutionalism’, Griffith Law Review, 30, no. 3 (2021): 438–73 .