Rights and Social Protection for Indigenous Peoples in Latin America

Dr Lorena Ossio Bustillos (front centre), head of the Max Planck Partner Group, with her team at the Catholic University of Bolivia in La Paz.

In February 2021, the Max Planck Institute for Social Law and Social Policy established an international Max Planck Partner Group with the Catholic University of Bolivia in La Paz. Under the leadership of Dr. Maria Virginia Lorena Ossio Bustillos, a team of legal scholars is investigating the significance of social cash transfers for poverty reduction, particularly with regard to the indigenous population.

Recommendation No. 202 of the International Labour Organization (ILO) calls on states to ensure that national social security strategies provide "support for disadvantaged groups and persons with special needs". In the course of efforts to implement this recommendation in national programmes, social protection measures such as "social cash transfers" have become widespread in Latin America since the end of the 1990s. Social cash transfers are regular, non-contributory payments from the state that secure the livelihood of poor households, usually as a means-tested benefit. In view of the high level of poverty in Latin American countries with a high number of disadvantaged persons or persons without social protection, "social cash transfers" are seen as a new form of social security for the Global South. Despite the importance of this measure, few case studies have been carried out to date that analyse this transfer system in more detail, particularly taking into account other existing benefits and the way in which different indigenous groups are included. The Partner Group's research project aims to fill this gap by analysing how the existence of parallel systems and lack of coordination thereof can lead to inequality.

To this end, the social benefits for the indigenous populations in Ecuador, Peru and Bolivia were analysed and compared with the social benefits for other socially disadvantaged groups in these countries. The countries were selected on the basis of their common legal history and their different national social protection programmes for the target groups mentioned. Particular attention was paid to the analysis of landmark court rulings and social transfer programmes as well as the legal reasoning regarding the principle of equality and non-discrimination in the selected countries.

Our hypothesis was that the non-observance of legal pluralism in the Andean countries in the area of social benefits leads to the exclusion of benefits. However, the case of a woman from the Machiguenga ethnic group in Poyentimari (Peru) was different. After the death of her husband, a bilingual teacher, she applied to the regional government of Madre de Dios (GOREMAD) for payment of a widow's pension. GOREMAD's response was negative, as the applicant could not produce a civil marriage certificate confirming her marriage in accordance with the requirements of the Civil Code and the Civil Registry Office, nor a court judgement recognising a de facto union or cohabitation.

The Machiguenga Assembly in Poyentimari, exercising its indigenous jurisdiction, found that the applicant widow and her husband had indeed lived in a common-law marriage for 40 years and had seven biological children, and that she therefore had the status of a widow and was thus entitled to a widow's pension. The Assembly did so against the background of the interpretation of indigenous jurisprudence and customary law in accordance with Article 149 of the Peruvian Constitution.

The representative of the Machiguenga Assembly informed GOREMAD of this decision, but GOREMAD continued to refuse to pay the widow's pension. The victim and the Machiguenga representative then filed a lawsuit. This was initially rejected but then went all the way to the Constitutional Court. The Constitutional Court ordered the case to be reviewed. On 26 February 2020, the Civil Court of Tambopata of the Supreme Court of Madre de Dios issued a ruling that declared the amparo proceedings (constitutional complaint) of the indigenous Machiguenga people against the regional government of Madre de Dios (GOREMAD) to be well-founded.

It has been shown that a similar development of jurisdiction with regard to the rights of indigenous peoples and the principle of equality can also be observed in Bolivia, with the result that indigenous jurisdictions can even take precedence over state jurisdiction. Indigenous jurisdiction is therefore also used in disputes over social benefits.

The results of the analysis of the court judgements and the database research were published in Spanish in May 2023 in a book entitled Jurisprudencia Constitucional Plurinacional y Jurisprudencia Multicultural (Documentos de consulta del proyecto prestaaciones sociales para los pueblos indígenas en América Latina). Another book, Derecho y Sistema de prestaciones sociales para los pueblos indígenas en América Latina, which examines the selected literature, was published in November 2023. In addition, the partner group issued a publication on the foundations of social law from a comparative law perspective (Derecho social, inclusión y protección social), which addresses various issues relating to the historical understanding of the welfare state and the rule of law in the Global North and the Global South.

Of particular importance for the execution of the international project at the Catholic University of Bolivia was the academic exchange at the annual conferences of the Law and Society Association in Lisbon in 2022 and in Puerto Rico in 2023. At both conferences, Lorena Ossio organised a panel in which Renzo Honores, Leonardo Villafuerte and Ingrid Schneck, also academic members of the group, took part in 2022. The following year, lawyer and human rights advocate Raquel Yrigoyen from Peru was one of the panellists.