Evaluating the usefulness of contemporary ethnoracial law for Afrodescendants in Latin America through the examination of court cases and the appreciation of the state’s processual nature

Abstract

in Miami, Florida, which led to the foundation of the Observatory of Justice for Afrodescendants in Latin America (OJALA). 1 The focus of the issue is on the adoption of what we call 'ethnoracial law' in Latin America since the late 1980s until the present. Each chapter contributes to this project with the analysis of one or two recent litigation(s) in which ethnoracial legal instruments were used as the case(s) unfolded in their particular national context, both within and beyond the confines of an actual courtroom. The comparative approach that the issue as a whole provides allows for an evaluation of the usefulness (or lack thereof) for Afrodescendants of ethnoracial law in its current forms in the region. We understand 'ethnoracial law' to encompass: 1) the articles of constitutions and special laws that recognize and define identity-based collective rights (generally over land or 'territory,' cultural practices, and perspective), and which form what are usually called 'multicultural legal instruments' (the right to be 'pluriversally' or 'decolonially' 2 different); and 2) the constitutional articles and special laws often referred to as 'racial equality law' or 'anti-discrimination law' adopted by constituent assemblies as well as municipal, provincial, or departmental, national, and international or multilateral governing bodies, which criminalize hate crimes and discrimination to guarantee the protection of Afrodescendants' rights and remedy wrongs they have experienced (the right to be the same). This distinction between the right to be different and the right to be the same has had notable relevance in Brazil, particularly when considering debates about political strategies within black social movements, which often separate representatives of urban and rural communities (

From the Transatlantic Slave Trade to Contemporary Ethnoracial Law in Multicultural Ecuador

“…Here, "precarity" is fundamentally concerned with the politics of inclusion and exclusion and points to the way we humans depend on the affective labor of others and on institutionalized forms of recognition to sustain our positive and constructive survival. silence about ethnoracial diversity aligned well with the ideology of national identity promoted by national elites and the state, which proclaimed the mestizo(a) (mixed-race individual of Spanish/European-Indigenous ancestry) as Ecuador's prototypical national identity (see Rahier 2003Rahier , 2014Silva 1995;Stutzman 1981;Whitten 1981:10-28 ). That ideological reification of mestizaje was directly inscribed within the framework of White supremacy, as it relegated indigenous identities to the national past while keeping Blackness at bay entirely, outside understandings of the nation.…”

“…here is always a scale of, or degrees of, alterity at work in Latin American societies, whereas indigenous persons and groups and Afrodescendant individuals and communities have not been racialized the same way. Afrodescendants have constituted the "ultimate Others" in Ecuador because they have been ideologically located in the constitutive outsides of the imagined nation, unlike indigenous people (Rahier 2003).…”

“…Constitutional silencing of ethnoracial diversity officially came to an end with the "Latin American multicultural turn" (Rahier 2012) and the advent of what legal scholars have called the "new Latin American constitutionalism," which reached Ecuador with the adoption of the 1998 constitution. 9 Indeed, the very first line of that constitution's Article 1 states that "Ecuador is a social, sovereign, unitary, independent, democratic, pluricultural and multiethnic state subjected to the rule of law."…”

“…2 Unlike Afrodescendants, indigenous people have been seen as an unavoidable ingredient in the "ideological biology of national identity" (Rahier 2019:175-198) that reifies mestizaje (exclusively White and indigenous "race mixing") as prototypical national identification (see also Greene 2007aGreene , 2007b. This essay shows how much ideological mestizaje continues to do its work within the Ecuadorian configuration of multiculturalism (Rahier 2012).…”

“…An African origin, which is not seen as positive in mainstream Ecuadorian society, and the highly negative value ascribed to coming from a lineage linked to the experiences of enslavement sustain the many expressions of Ecuadorian anti-Black racism and the construction of Afro-Ecuadorians as "ultimate Others" (Rahier 2003(Rahier , 2011(Rahier , 2014. Afro-Ecuadorians live within national borders while remaining extraneous to mainstream and popular understandings of Ecuadorian national identity.…”