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Self-determination in international law

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Title:
Self-determination in international law a comparative analysis of South Africa and Guatemala
Creator:
Parham, Erin Day
Publication Date:
Language:
English
Physical Description:
vi, 38 leaves : ; 29 cm

Subjects

Subjects / Keywords:
Self-determination, National -- Guatemala ( lcsh )
Self-determination, National -- South Africa ( lcsh )
Self-determination, National ( fast )
Guatemala ( fast )
South Africa ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 36-38).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Political Science.
General Note:
Department of Political Science
Statement of Responsibility:
by Erin Day Parham.

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Source Institution:
University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
31508878 ( OCLC )
ocm31508878
Classification:
LD1190.L64 1994m .P36 ( lcc )

Full Text
SELF-DETERMINATION IN INTERNATIONAL LAW:
A COMPARATIVE ANALYSIS OF SOUTH AFRICA AND GUATEMALA
by
Erin Day Parham
B.F.A., University of Colorado at Denver, 1991
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science
1994


1994 by Erin Day Parham
All rights reserved.


This thesis for the Master of Arts
degree by
Erin Day Parham
has been approved for the
Department of
Political Science
by
MichaeTS. Cummings


Parham, Erin Day (M.A., Political Science)
Self-Determination in International Law: A Comparative Analysis of South Africa
and Guatemala
Thesis directed by Associate Professor Glenn T. Morris
ABSTRACT
The Black majority of South Africa exercised its right to self-determination
when it voted for the first time in April, 1994. This article discusses whether South
Africa is an anomaly, or if the one-person/one-vote basis on which the Black majority
long claimed and recently exercised its right to self-determination is also applicable to
another disenfranchised, indigenous majority, namely the Maya in Guatemala.
A comparative analysis of the two states is conducted to determine the viability
of South Africa as a model for Guatemala. Substantial similarities between the two
states are found, affirming the viability of the comparison. The similarities are: 1) both
South Africa and Guatemala are settler states colonized under conquest traditions that
were racist in their presumption of superiority over the indigenous peoples; 2) both
states are composed of a disenfranchised indigenous majority as well as an elite
minority comprised primarily of descendants of the colonizers; and 3) both states
practice (or once practiced in the case of South Africa) official, state-sanctioned racism,
or apartheid.
After analyzing the right to self-determination in major international legal
instruments (the UN Charter, General Assembly Resolution 1514 (XV), the two
IV


International Covenants on Human Rights, and General Assembly Resolution 2625
(XXV)), five foundations are presented that legitimize the Black majority's right to
self-determination. Of the five foundations, four are applicable to the Maya majority in
Guatemala.
Moving beyond the theoretical exercise into the practical application, this article
concludes with a discussion of possible impediments to the realization of a Maya right
to self-determination in Guatemala despite the theoretical foundation.
This abstract accurately represents the content of the candidate's thesis. I recommend
its publication.
Signed.
Glenn T. Moms
v


CONTENTS
INTRODUCTION................................................1
SOUTH AFRICA AND GUATEMALA..................................2
SELF-DETERMINATION IN INTERNATIONAL LAW....................14
The Basics.......................................... 15
Who is the "Self'?...................................17
Self-Determination and State Rights..................21
SELF-DETERMINATION AND THE INDIGENOUS
MAJORITIES OF SOUTH AFRICA AND GUATEMALA...................24
FURTHER CONSIDERATIONS................................... 32
REFERENCES.................................................36
vi


INTRODUCTION
As the Black majority of South Africa voted for the first time in April, 1994, the
question arose concerning other indigenous peoples and the parameters of their right to
self-determination. Is South Africa an anomaly, or can the historical situation in South
Africa be utilized as a model for other peoples who might assert the right of self-
determination, namely the Maya of Guatemala? This article will compare Guatemala to
South Africa; however, the results of this study are not confined to the state of
Guatemala. Other states with indigenous peoples constituting a majority of the
population, such as Bolivia, Peru, and Ecuador,1 could also benefit from this study.
The two primary questions addressed are: 1) On what basis has the African National
Congress (ANC) long claimed and recently exercised the right to self-determination for
the indigenous Black majority; and 2) Is the foundation on which the ANC based its
right to self-determination also applicable to the indigenous Maya majority of
Guatemala? To answer these two questions, a comparative analysis of South Africa
and Guatemala must be performed. In the first section, South Africa will be shown to
be a viable model for the political situation in Guatemala despite some differences
between the states. The background of the right to self-determination in international
law follows and provides the theoretical foundation on which the two questions
presented will be answered. Section three answers the two questions posed. This
^The indigenous peoples of Bolivia and Peru constitute 80 and SO percent of the population,
respectively (Ortiz 1984, 16). Additionally, Ecuador's indigenous population is just less than half of
the total population. "Only 10% of the population has ever been reported as white, while around 5% is
African. The rest is Mestizo/Indian, while nearly half are Indian" (Ortiz 1984, 18).
1


paper concludes with a discussion of impediments to the realization of a Maya right to
self-determination despite the theoretical foundation.
SOUTH AFRICA2 AND GUATEMALA
The examination of the right to self-determination for the indigenous peoples of
Guatemala arose from basic similarities between the Guatemalan and South African
states. First, both states were colonized as "settler colonies" rather than "colonies of
exploitation" (terms used by Adam and Moodley 1993). The distinction between these
two colonies is important: "In the latter, the much more common form of pure
exploitative colonization, imperial powers controlled a territory through a relatively
small group of administrators, soldiers, and missionaries. These colonial
representatives returned home when their contracts ended ..." (Adam and Moodley
1993, 18). Settler colonies, in contrast, attracted much larger numbers of people for
permanent settlement within the territory. Thus, the fundamental difference is that the
colonizers of settler colonies established permanent residence while the colonizers of
more traditional colonies of exploitation did not. Additionally, "In terms of settler-
native relations, settler rule was usually much harsher and more oppressive than
traditional colonial domination" (Adam and Moodley 1993,20). Both South Africa and
Guatemala fall within this category of "settler states" as defined above.
A major distinction between the two states of South Africa and Guatemala is the
conquest tradition employed by the settler colonizers. The Dutch colonizers of South
2The ensuing discussion of South Africa is presented in terms of the time period prior to the
free election in April, 1994.
2


Africa followed the Teutonic conquest tradition while the Spanish colonizers of
Guatemala followed the Latin tradition. The differences between Teutonic and Latin
conquest traditions are significant.3 First, the Teutons tended to implement a policy of
physical segregation of races within the colonies, a policy based upon a supposed
preeminence of the white race. The Latins instituted an assimilationist policy which
centered on the integration of native peoples. "The logic of the policy of assimilation
rested on a presumed supremacy of culture, rather than a presumed supremacy of race"
(Mazrui 1983, 36). In the Teutonic tradition, therefore, there was one valid race while
in the Latin tradition there was one valid culture. Second is each tradition's perspective
on race mixing. Mazrui (1983) provides four classifications for children of racial
mixture, of which the first three are applicable here.4 The Teutons strongly favored
either descending or divergent miscegenation while seldom allowing ascending
miscegenation. Descending miscegenation is hardly ever seen in the Latin tradition,
while both ascending and divergent miscegenation are apparent.
These two points need clarification. First, even though the Teutons instituted
separatist policy while the Latins instituted integrationist policy, both policies were
3The ensuing discussion is derived from Mazrui (1983), who focuses on the British.and
French colonies of Africa but explains that from these specific examples general traits of both Teutonic
and Latin conquest traditions can be extrapolated. "Some French characteristics or attitudes are widely
shared by Italians, Spaniards, and Portuguese. Some British racial ideals are shared by many Germans,
Dutch and white Anglo-Saxon Protestants in the United States. When some of those aspects of ethnic
culture came into contact with a new imperial role by those Western countries, it affected the nature and
orientation of that imperialism [emphasis added]" (Mazrui 1983, 35; see also Williams 1990).
4The first is called "descending miscegenation" in which the child descends to the status of the
less privileged parent. The second, "ascending miscegenation," opposes the first and sees the child
ascending in status with the more privileged parent. "Divergent miscegenation," the third
classification, creates a third group separate from the first two, of which the child is a part. (Mazrui
1983, 37-8).
3


motivated by attitudes of superiority, and were therefore, racist. "... [TJntegration often
results in cultural alienation, and policies of forceful assimilation, incorporation or
integration of Indian nations, peoples or groups, entail forms of racism" (Ortiz 1984,
55). Further, if an individual failed to assimilate, thus retaining his/her own culture,
segregation, another form of racism, appears within the Latin tradition. Both traditions
were, therefore, separatist. The difference in the enforcement of separation lay in the
possibility of change: race cannot be changed while culture can be through the process
of assimilation. The cases of South Africa and Guatemala are illustrative on this point.
Regarding access to society, whether political, economic, or social, the situation for the
Blacks of South Africa was absolute: they had none. In Guatemala the situation is not
as blatant even though the result is similar. The Maya do not have access to society as
Indians; access for Maya is achieved only if they assimilate into ladino culture. This
change of culture is a major qualification. Assimilating into ladino culture is not true
access to society, because like the Blacks in South Africa, the Maya in Guatemala
cannot enter society while preserving their indigenous identity.
Next, the explanation of the perspectives on miscegenation shows both
traditions employing divergent miscegenation. Creation of a third category for people
of mixed race implies ambivalence on the subject of race mixing and thus a racist
attitude. Ambivalence is apparent within both South Africa and Guatemala. As
expected with the Teutonic tradition, the group named "coloureds" in South Africa is an
example of divergent miscegenation. This group is separate from both the Blacks and
Whites and is composed of people of mixed races as well as people of East Indian
4


descent. Similarly, in Guatemala, "mestizo" is an example of divergent miscegenation.
Hence, racism is a constant element in both conquest traditions.
Even though different methods were utilized by the Teutons and the Latins, at
least one major result of each is the same: both conquest traditions are racist in their
presumption of superiority. Whether this presumption is racially or culturally based is
not paramount. Segregation is essential to the Teutonic tradition but also has a place
within the Latin tradition. Integration is not fail-safe, as is seen with the millions of
Maya who have retained their culture instead of assimilating into ladino culture. When
assimilation fails, segregation exists within the Latin tradition. Additionally, both
South Africa and Guatemala classify some people in the divergent miscegenation
category. As stated, the incorporation of a third category of people shows ambivalence
on the issue of race mixing, thus showing another aspect of racism within both
traditions. Hence, both traditions are destructive of indigenous peoples and cultures in
their own right.
Another similarity between the two states is that the indigenous peoples within
each state constitute a numeric majority of the population. Estimates of the Maya
population in Guatemala vary from 50 to 70 percent.5 The Black majority of South
Africa is numbered at 28 million out of a total population of 40 million, or 70 percent.
Within South Africa the Black majority is composed of 12 or 13 nationalities, while in
5Menchu (1984) and Trudeau (1993) both state that at least 60 percent of the population is
indigenous. Jonas (1991) refers to the 87 percent majority peasant class of which 50-60 percent are
Indian (225). "... [T]he Maya Language Academy (ALMG) estimates a current native population of 70
percent, while the Council of Mayan Organization (COMG) claims that 65 percent of Guatemalans are
Indian" (Bany 1992, 217). Ortiz (1984) provides the number of Maya in 1984 as being 4 million out
of a total population of 7 million, or 57 percent (16). Perera (1993) with a more updated population
count finds 5 million Maya out of a total population of 9.5 million (10-11).
5


Guatemala the indigenous majority stems from one nationality, Maya, yet 22 languages
exist. Despite the stated majority percentages within both states, the situation in South
Africa is more readily apparent. There is no question that a Black majority exists in
South Africa. But in Guatemala, arguments are presented that attempt to rebut the truth
of an indigenous majority. Barry (1992) states "... that culture rather than race is the
better indian-ladino criteria [sic] since the entire Guatemalan population shares the same
gene pool" (217). In other words, arguments favoring this gene pool position obviate
the truth of the indigenous Maya majority by espousing the population to be linked
racially. Lack of homogeneity appears to be another attempt to discredit the
majoritarian status of the Maya. Warren (1993) states that"... Mayan populations are
not homogeneous in language or identification. Twenty-three Mayan languages and
approximately one hundred community-specific dialects are spoken in Guatemala" (26).
Mare's (1993) discussion on ethnicity provides valuable insight into this question of
homogeneity. He states,
The symbols for that bond [of ethnicity] are most commonly cultural:
language, religion, the dress associated with cultural history, the
festivals, even the values associated with the group ... Assumptions of
sameness are based on these similarities, especially a common language.
Physical characteristics may play a part, as in the case of Afrikaners,
where skin colour served as a cultural symbol in the mobilisation of
ethnicity. (Mare 1993,12)
From this explanation it is understandable that some do not view the Maya as a
cohesive whole; i.e., the languages are not common and the physical characteristics are
not as obviously different as in South Africa. However, Mare (1993) continues and
explains that "[p]eople draw together into the ethnic group despite the frequent absence
of other expected similarities" (12), such as the similarity of language. Individuals do
6


not have to be exactly the same in order to identify as members of a particular people.
Even though the case in Guatemala is not as clear as in South Africa, the Maya are one
people that compose the majority of the population.6
As stated, the indigenous peoples of both states comprise a majority of the
population; however, both political and economic power are held by an elite minority
that is overwhelmingly represented by descendants of the colonizers. The presence of
an elite minority is the final similarity. When an elite minority within the state holds
most of the political and economic power, it follows that a majority of the population is
disenfranchised. South Africa's system of apartheid (formally in effect from 1948 to
1991) was based on blatant racial discrimination and segregation, thus disenfranchising
the Black majority. In contrast, Guatemala's 1985 Constitution guarantees individual
rights and political participation to all of its citizens. Therefore, the positive (written)
law of these two states differ radically blatant segregation espoused within one and
democracy established within the second. How, then, can it be stated that an elite
minority and a disenfranchised majority exist in Guatemala?
In Guatemala, the positive law is inconsistent with the practice of the state.
State practice is centered around a policy of "constructive apartheid," the practice of
apartheid despite its lack of specific recognition in positive law, a policy that effectively
disenfranchises the indigenous majority. Central to a system of apartheid is official,
state-sanctioned racial discrimination, which includes policy differentially and
arbitrarily affecting only a particular segment of society. Racial discrimination is
6See
pages 25-27 below for a continuing discussion on distinctive Maya culture.
7


defined within the 1966 UN General Assembly Resolution 1904 (XXI), entitled the
International Convention on the Elimination of All Forms of Discrimination as
any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
All of the literature on Guatemala acknowledges racial discrimination against the
indigenous people. At the very core of racism, there is a belief in Guatemalan (ladino7)
society that Indians are "dumb, lazy, crude, backward, ... less civilized ..." (Barry
1992, 217) and "... 'culturally retarded' ... constituting] a ... drag on development"
(Adams 1988,280). In other words, Indians are seen as a major cause of the country's
poverty and maldevelopment (Jonas 1991, 107; Stavenhagen 1992, 426). Also, the
"... ladino minority thinks its blood is superior, a higher quality, and they think of
Indians as a sort of animal" (Menchu 1984,167). Racism against Indians is described
as permeating all aspects of society, including the class structure (Arias 1990; Frundt
1990; and Smith 1992b). Referring to the poor ladino and their differences with the
rich ladino, Menchu (1984) states, "No matter how bad their conditions are, they feel
ladino, and being ladino is something important in itself: it's not being an Indian"
(167). These statements exemplify the societal racism inherent in Guatemala.
State-sanctioned racism in the form of governmental policy affecting particular
peoples reinforces this general societal racism. State-sanctioned racism in Guatemala is
implicit through military involvement in death squads, civilian self-defense patrols
^A ladino is "... any Guatemalan whatever his economic position who rejects, either
individually or through his cultural heritage, Indian values of Mayan origin" (Menchu 1984,249).
8


(Patrullas de Auto-Defensa Civil, PACs), and "model villages." Since 1954 death
squads have been part of permanent state policy. Most death squad activity is directly
sponsored by the security forces of the state, i.e., the army and the police, and are
"... composed of off-duty or former members of these security forces ..." (Jonas
1991, 62). The objective of death squads is to eliminate any real or potential critics of
the government (Amnesty 1988, 8; Jonas 1991, 6). The means used by death squads
to achieve this end include both threatening and implementing acts such as kidnapping,
torture, and assassination. "Victims are customarily found mutilated, decapitated,
dismembered, strangled or showing marks of torture (such as burns or machete
wounds) or rape" (Amnesty 1988, 12; see also Bany 1992; Jonas 1991). Most of the
violence committed by death squads is directed against specific individuals in order to
intimidate entire constituencies (Jonas 1991, 163). Death squads target Indian
communities in Guatemala because they are viewed as real or potential sympathizers of
the "guerrillas," and therefore, real or potential critics of the government. This policy
denies Indians the enjoyment arid exercise of their human rights and fundamental
freedoms, and is therefore racial discrimination sanctioned by the state.
In addition to death squads, PACs, composed of indigenous men within the
community as directed by the military, evidence state policy affecting particular people.
PACs are "... designed to force villagers to participate in the eradication of the guerrilla
movement and generally to eliminate political activity in opposition to the government"
(Jonas 1991, 150; see also Barry 1992, 52). Recruiting members of PACs is a
coercive measure employed by the military. The military compels men (males over 16
years old) of the indigenous communities to serve on the PACs under the implicit
9


understanding that if they refuse to serve, they will be labeled sympathizers with the
"insurgents." Thus, whether an individual is a sympathizer or not, he is required to
serve within the PAC to avoid persecution by the military. Since the 1985 constitution,
membership within, and even the presence of, PACs is to be voluntary, but in practice
the army responds to efforts at reducing or eliminating PACs by asking ". who will
protect you from the subversives? The implied threat is unmistakable" (Jonas 1988,
36). PACs are, therefore, analogous to death squads with the fundamental difference
being the membership of each the military participates directly in death squads but
indirectly in PACs through the "recruitment" of indigenous men. Hence, PACs, like
death squads, evidence state-sanctioned racial discrimination or constructive apartheid.
The military's involvement in "model villages" once again affects particular
people, Indians, and demonstrates constructive apartheid in Guatemala. "Model
villages" is the term used by the military for camps of people they have displaced. The
military physically removes an entire community from its traditional homelands and
places it in model villages. Once in these forced resettlement camps every aspect of the
people's lives is subject to direct military control (Jonas 1991,150). "The effect of this
strategic hamletting is not merely to deny the guerrillas a base but to break up
definitively the Indian community by dislocating them from their traditional farming and
living areas and places of religious and cultural importance" (Burger 1987, 84; see also
Perera 1993, 111). Clearly, model villages are evidence of state-sanctioned racial
discrimination because they deny Indians their human rights and fundamental
freedoms.
10


In addition to the state-sanctioned racism implicit in military policy, further
Indian-specific policy is apparent in Guatemala. The "scorched-earth" policy of the
1980s "... resulted in 100,000 civilian deaths, 40,000 disappearances, 440 villages
destroyed, 250,000 orphans, more than 100,000 refugees, and as many as one million
internally displaced persons" (Barry 1992, 32; see also Perera 1993, 87). This policy
reveals not only Indian-specific policy but also genocidal policy. Assimilationist policy
is a second example. "Non-Indian intellectuals ... believe that as long as Indians retain
their separate identity, Guatemala cannot achieve the status of a modem nation" (Smith
1990, 5). The racial discrimination faced by Indians as they wear traditional dress or
speak native languages forces them into ladino society, or forces them to assimilate.
Finally, the forced sterilization of Indian women, referenced in both Menchu (1984)
and Barry (1992), is another example of policy that affects only particular people.
Official, state-sanctioned racial discrimination, which includes policy
differentially and arbitrarily affecting only a particular segment of society, has been
seen through Indian-specific policy, particularly with the practice of the military. The
presence of constructive apartheid in Guatemala inevitably affects the state's
"democracy." Numerous challenges to Guatemala's "democracy" are apparent within
the literature.8 Within a democratic system of government citizens must feel they are
able to participate politically without any recriminations or sanctions (Trudeau 1993,
113). The Maya majority of Guatemala has not been able to participate without any
8It is uncontested that prior to 1985 Guatemala was wrought with oppression. From 1954,
with the overthrow of President Arbenz, to 1985 it is clear that Guatemala was a military dictatorship
and not a democracy. Yet the focus here is on the nine years since the ratification of the new
constitution where the organization of the political system is questionable.
11


recriminations or sanctions because of the continuing military occupation, in addition to
death squads and PACs, in the highlands of Guatemala, the area where the vast
majority of Maya live. The exclusion of a particular people from political participation
also hinders democracy. Throughout the nine years of civilian rule the Maya majority
has been excluded from national politics (Robberson 1993). Menchu (1984) and Smith
(1992a) acknowledge the lack of representation of the indigenous peoples in
government. Smith (1992a) speaks of "... the Guatemalan state always run by
Ladinos with no Indian representatives ..." (12) while Menchu (1984) repeatedly refers
to the President and the State government as the ladino's, not theirs. The Indian's lack
of representation and participation is in relationship to the ladinos' monopoly on
political power in Guatemala. In addition to the absence of political representation of
Guatemalan Indians, the limitation of parties allowed to participate in elections, i.e., the
illegality of left parties, also challenges the "democracy" (see Jonas 1991 and 1988; and
Trudeau 1989). Trudeau (1989) challenges the assumption that elections resulting in a
civilian president, the elections in Guatemala since the enactment of the 1985
constitution, have created democracy. "There must be clear evidence that democratic
procedures allow the general populace to have a visible, tangible impact on policy,
producing outcomes that favor the general populace" (Trudeau 1989, 102).9 The
elections of the two civilian presidents since 1985 support Trudeau's (1989) assertion.
9Davis (1988) also provides criticism of Guatemala's claim of democracy on the basis of
elections. As he states, "Few people in positions of power understand what is going on in rural areas
of the country, nor is there much comprehension of what Guatemala's indigenous people want from a
return to constitutional government and civilian rule" (Davis 1988, 30-1). Ortiz (1984) concurs: "...
not only does voting not guarantee democracy, it can even make groups more vulnerable to
manipulation" (57).
12


Vinicio Cerezo was the first elected civilian president after the ratification of the
1985 Constitution. "The limits placed on his office by the military he courted became
evident during his first six months in office ..." (Perera 1993, 284). Cerezo
"... confessed that he did not expect to hold more than 30 percent of actual power
during his first two years in office and 70 percent by the end of his term. The reverse
now appears to have been closer to the mark" (Perera 1993, 285; see also Jonas 1991,
157). Thus, Cerezo progressively lost control to the military as the 1980s advanced.
Referencing the control the military had over his office, Cerezo stated, "You have to
understand that if I don't keep the generals happy, I will be overthrown" (quoted in
Perera 1993, 293). The military maintained control over the presidency in 1990 when
Jorge Serrano succeeded Cerezo.10 "Serrano's right-hand military man ... has
catapulted himself ... from the shadow at Serrano's back to the shadow president who
makes the important decisions and, in effect, runs the government" (Perera 1993,344).
Moreover, massive violence including fundamental human-rights violations continued
throughout both of these civilian presidencies. The elections of civilian presidents in
Guatemala, therefore, have not created a true democracy; instead, the military has
maintained de facto control of the state.
State practice within Guatemala differs from the positive law embodied within
the 1985 Constitution, disallowing the indigenous Maya majority within Guatemala to
10In the 1990 election, "The real winner was Abstention: The valid vote was split among
barely 30 percent of the electorate (compared with 44 percent in 1985), as 70 percent of eligible voters
either did not register, did not vote, or cast invalid ballots. In some rural indigenous areas, the
statistics were far worse. It was, in the words of one observer, a technically 'clean' election, yet 'so
meaningless to the country's real problems that it has been described as "electoral apartheid"'" (Jonas
1991, 228).
13


participate freely within the "democracy." Therefore, both the Black majority and the
Maya majority are effectively disenfranchised from their respective states, revealing the
fallibility of South Africa's democracy as well as the fallacy of Guatemala's unification.
Menchu (1984) sums up the issue of apartheid eloquently when she states,"... there is
no freedom in Guatemala. Not for us at least" (234). Thus, unlike South Africa,
which included apartheid within its written law, Guatemala has a system of
"constructive apartheid," the effects of apartheid ever present despite its absence in
written law.
The preceding comparative analysis affirms the viability of this comparison.
The next section provides background to the right of self-determination in international
law in order to answer the two questions presented.
SELF-DETERMINATION IN INTERNATIONAL LAW
With the 1940s came a change in perspective about the concept of self-
determination; plebiscite theory11 was discarded in favor of liberation theory,
particularly the liberation of colonial territories (Ofuatey-Kodjoe 1977,103-4; Hannum
1990, 454). The first major document to embrace this emphasis on liberation in
relation to self-determination was the United Nations (UN) Charter adopted in 1945.
The following discussion will identify the major issues surrounding self-determination
in international law as demonstrated in five international legal instruments since 1945.
^Plebiscite theory is simply the idea of having a government by consent of the governed.
This emphasis is evident within Wilson's 14 points as well as the Atlantic Charter. See Ofuatey-
Kodjoe (1977) for a detailed explanation of the plebiscite theory in relation to other manifestations of
the right of self-determination.
14


The Basics
Ascertaining where and how the right to self-determination is established within
international legal instruments is essential. In other words, what language is used
within the documents and how this language is interpreted. First, within the UN
Charter the concept of self-determination is specifically enumerated in Articles 1 and
55. Article 1, paragraph 2 explains one of the purposes of the UN to be the
development of"... friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples ...." Article 55 also refers to the
"... respect for the principle of equal rights and self-determination of peoples ..." but
here within the context of promoting "... universal respect for and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex,
language or religion."12
The second major international instrument is UN General Assembly Resolution
1514 (XV), adopted December 1960 and entitled the Declaration on the Granting of
Independence to Colonial Countries and Peoples. The resolution's purpose was to
continue the dismantling of colonialism in all its forms and manifestations, including
economic, social, and cultural, in addition to political, manifestations (Umozurike
12Only a narrow reading of the Charter itself shows the existence of a principle of self-
determination, not a legal right: "... the principle of self-determination was one of the desiderta of the
Charter rather than a legal right that could be invoked as such" (Daes 1993,2). However, the inclusion
of self-determination in international treaties confirms its existence as a legal right (Cass 1992, 28-9;
Ofuatey-Kodjoe 1977, 117). As Cristescu (1981) explains, "Since the Charter referred to the right to
self-determination as a principle, any Member State which had accepted the principle was committed to
respecting the right that derived from it, which was of a universal and permanent character" (8). The
implementation of these international instruments, i.e., international practice, further reveals the
acceptance of a legal right.
15


1972, 73). Resolution 1514 (XV) sets out seven principles, of which the second is
meaningful for the present discussion. Principle II reads: "All peoples have the right to
self-determination; by virtue of that right they freely determine their political status and
freely pursue their economic, social, and cultural development." This language is
reiterated within Article 1 of each of the two International Covenants on Humans Rights
passed by the UN General Assembly in 1966.13 Thus, these three international
instruments build on the foundation of the UN Charter regarding the right of self-
determination.
The final international legal instrument that will be used to demonstrate a
foundation for the right of self-determination is UN General Assembly Resolution 2625
(XXV), entided the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United
Nations, adopted October 1970. The concept of self-determination is addressed at
several points within this Resolution. Three paragraphs of the preamble discuss the
principle of equal rights and self-determination as enumerated within the UN Charter
(Cristescu 1981, 10), yet more important is the language used within the main text. It
reads in part:
13These documents on human rights are, specifically, the International Covenant on Civil and
Political Rights and the International Covenant on Economic. Social and Cultural Rights. Even
though these were adopted by the General Assembly in 1966, they "...came into force as treaties in
1976, when the required number of ratifications were attained" (Ortiz 1984, 39). These Covenants
follow the 1948 Universal Declaration of Human Rights which implicitly refers to self-determination
in Article 15 (Cass 1992, 28-9). The discussions on human rights and self-determination note self-
determination as the cornerstone of all human rights; therefore, a violation of peoples' self-
determination is a violation of human rights.
16


By virtue of the principle of equal rights and self-determination of
peoples enshrined in the Charter of the United Nations, all peoples have
the right freely to determine, without external interference, their political
status and to pursue their economic, social and cultural development,
and every State has the duty to respect this right in accordance with the
provisions of the Charter.
The essence of this wording may appear to reiterate the rights enumerated within
Resolution 1514 (XV) and the two International Covenants on Human Rights; even so,
Resolution 2625 (XXV) makes additional contributions by noting the necessity of
protecting against external interference in the exercise of self-determination as well as
each member state's responsibility to uphold the right of self-determination. The
concept of self-determination of peoples, therefore, is clearly established within
international law as evidenced by the preceding five major legal instruments, namely the
UN Charter, Resolution 1514 (XV), the two International Covenants on Human
Rights, and Resolution 2625 (XXV).
Who is the "Self'?
The right of self-determination accorded to "peoples" is a collective rather than
an individual right. "The legitimate 'self,' therefore, is a collection of individuals
having a legitimate interest which is primarily political, but may also be economic,
cultural, or any other kind" (Umozurike 1972, 195). Furthermore, both objective and
subjective factors must be taken into account when defining peoples. "From an
objective standpoint, the group's sense of identity may be traced to a combination of
elements such as a common ethnic background, a shared history, language or religion,
while from a subjective standpoint it may be due primarily to an ethos or state of mind"
(Nanda 1981,276). Even though these attempts at defining the "self' are instructive, a
17


specific quality presents itself both in the wording of the five international legal
documents and in international practice.
Some argue that the right of self-determination is limited to colonial situations,
including trust and non-self-goveming territories. "The meaning of the term 'people'
[in Resolution 1514 (XV)] is conditioned by repeated references to colonialism"
(Thomberry 1989, 874). Non-self-governing and trust territories are specifically
referred to in Chapters XI and XII of the UN Charter as well as the two International
Covenants. These specific references to colonial, trust, and non-self-governing
territories provide the foundation for limiting to whom the right of self-determination
belongs. But is the right of self-determination limited only to colonial countries and
peoples?
Traditionally, self-determination entailed the throwing off of an oppressive
government, not just decolonization. The U.S. Declaration of Independence states that
"... Governments are instituted among Men, deriving their just powers from the
consent of the governed, That whenever any Form of Government becomes destructive
of these ends, it is the Right of the People to alter or to abolish it, and to institute new
Government...." This is the idea of representative or democratic self-determination.
"A claim to 'representative' self-determination results when the population of an
existing state seeks to change its political structure in favor of a more representative
(and preferably democratic) structure" (Halperin et al. 1992, 52). Therefore, self-
determination in the form of "one-person/one-vote" is applicable to any peoples
constituting the majority of the population who are essentially disenfranchised by the
state.
18


The incorporation of colonial, trust, and non-self-goveming territories within
these international documents on self-determination was due to the political urgency of
the time. The parallel discussion is self-determination during World War I which
centered on the right of self-determination of nationalities. This specific reference to
nationalities, however, did not exclude other peoples from the right. After World War
II and the adoption of the UN Charter, the predominant discussion of self-
determination centered around the expansion of the right to colonial territories and
peoples (Ofuatey-Kodjoe 1977,40-1). Again, this specific reference does not exclude
other peoples from the right of self-determination. An elaboration of the inclusion of
trust and non-self-governing territories within the two international covenants is
provided by Cristescu (1981):. "It was further explained that the paragraph referred
only to Trust and Non-Self-Governing Territories because the achievement of
independence by the peoples living in those Territories was the most urgent problem"
(9). Similarly John Collins argues that "although political events have concentrated the
UN's focus on colonial territories ... the principle of self-determination should not be
considered strictly as a colonial right" (quoted in Cass 1992, 31). Cass (1992) argues
that even if one is to take the conventional and literal approach to analyzing the
international instruments on self-determination, state practice and state attitude towards
the right of self-determination parallels the controversial position.14 As evidenced by
the claims of Palestine, Slovenia, Croatia, and the Baltic states, to name a few cases,
the right of self-determination has been shown to exist outside of colonial situations.
14The "conventional" view supports the idea of self-determination as limited to colonial
situations while the "controversial" position asserts the legitimacy of self-determination beyond
colonialism (Cass 1992, 29).
19


"There is a growing list of examples where a right to self-determination has been
recognized regardless of its failure to fit conventional theoretical requirements" (Cass
1992, 38; see also Nanda 1981). Therefore, the inclusion of colonial, trust, and non-
self-governing territories is due to the political urgency of the matter, and each of these
is merely a subcategory of the more general "peoples."15
Self-determination of non-colonial peoples is, therefore, established. Yet is the
right absolute and accorded to "all peoples," as stated in Resolution 1514 (XV) and the
two International Covenants, or do ambiguities regarding the definition of "peoples" as
the intended or potential beneficiaries of the right persist?16 One answer is that a
legitimate claim to self-determination is possessed by subjugated or oppressed peoples,
not by "all peoples." The determination of human-rights violations and self-
determination is the cornerstone of human rights is based upon the extent to which
peoples are subjected to "alien subjugation, domination and exploitation"17 (Nanda
1981, 278). Resolution 1514 (XV) clearly establishes this criterion. The first of the
seven principles set forth in Resolution 1514 (XV) states, "the subjection of peoples to
alien subjugation, domination and exploitation constitutes a denial of fundamental
human rights, is contrary to the Charter of the United Nations and is an impediment to
the promotion of world peace and cooperation." This principle is followed by the
15Note that Resolution 2625 (XXV) does not exclusively address colonial territories like the
other documents, thus supporting the position that self-determination extends beyond the colonial
situation.
16Only within the two International Covenants does the right appear as universal, without
any limitations. As a document and later a treaty on human rights it seems only logical that the rights
embodied within the treaty are equally applicable to all.
17See page 25 below for a discussion on the meaning of "alien" subjugation.
20


second principle, which reads, "All peoples have the right to self-determination
Therefore, "all peoples" in Principle II is qualified by the "alien subjugation,
domination and exploitation" of Principle I (Umozurike 1972, 72).18 Subjugation,
according to Ofuatey-Kodjoe (1977),"... is probably the most important characteristic
required to validate a claim to the right of self-determination" (157). Therefore, when
determining the legitimacy of a particular self-determination claim, this criterion of
subject status is essential.
Beyond the wording of Resolutions 1514 (XV) and 2625 (XXV), state practice
shows the importance of oppression in self-determination claims. When examining
peoples who had exercised their right to self-determination, Ofuatey-Kodjoe (1977)
found one common characteristic: "... none of them was self-governing. They were
considered as 'subject' to or 'oppressed' by an alien group" (Ofuatey-Kodjoe 1977,
153). Even though the application of the right to self-determination varied as no two
peoples claiming self-determination were the same, the common characteristic is telling.
Hence, the right of all peoples to self-determination is truly a right accorded to peoples
under alien domination in both colonial and noncolonial situations.
Self-Determination and State Rights
Some argue that state sovereignty is an absolute right, a right superseding all
others, including the right to self-determination. Yet, a widely discussed clause in
1 Resolution 2625 (XXV) also asserts this essential element of subjected peoples: "... and
bearing in mind that subjection of peoples to alien subjugation, domination and exploitation
constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary
to the Charter."
21


Resolution 2625 (XXV) provides limitations to state rights in relation to self-
determination. It reads:
Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and
independent States conducting themselves in compliance with the
principle of equal rights and self-determination of peoples as described
above and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or
colour.
Three interpretations of this salient clause have emerged within the literature and are
worthy of discussion here.
First, a state's right to territorial integrity is not protected under international law
if that state fails to comply with certain other principles of international law, such as the
principle of equal rights and self-determination of peoples. "... [Ijntemational law does
not much uphold sovereignty principles when they would serve as an accomplice to the
subjugation of human rights or act as a shield against international concern that
coalesces to promote human rights" (Anaya 1993,161; see also Daes 1993; and Nanda
1981). A state cannot hide behind the veil of international law if it is also violating
international law. Thus, violations of fundamental human rights legitimize peoples',
including internally colonized peoples, right to and exercise of self-determination.
According to the second interpretation, a state possessing an unrepresentative
government is not entitled to protection against the dismemberment or impairment of its
territorial integrity or political unity. "Thus, under special circumstances, the principle
of self-determination is to be accorded priority over the opposing principle of territorial
integrity" (Nanda 1981, 270). The inclusion of peoples under "alien subjugation,
22


domination, and exploitation" within the Resolution further supports this interpretation
and its focus on the unrepresentative government (Nanda 1981, 270). A state that
subjects, dominates, and exploits peoples is simply not a state representative of the
whole people. Espiell (1980) provides a further qualification of the clause. He states,
... it is necessary ... to specify that if the national unity claimed and the
territorial integrity invoked are merely legal fictions which cloak real
colonial and alien domination, resulting from actual disregard of the
principle of self-determination, the subject people or peoples are entitled
to exercise, with all the consequences thereof, their right to self-
determination. (Espiell 1980,14)
In sum, "The guarantee of integrity is contingent upon the existence of representative
government" (Thomberry 1989, 876).
The third interpretation of the clause is based upon the final words, "without
distinction as to race, creed or colour." This interpretation sees this clause limiting state
rights solely within a racial context. Only in the case of racist regimes does the
principle of self-determination supersede territorial integrity and national unity. Thus,
those supporting this position posit that the inclusion of this final description limits the
situation to the few racist regimes, not all unrepresentative governments. Self-
determination may supersede state rights, therefore, in cases of human rights
violations, unrepresentative governments, or racist regimes.
In sum, the language of self-determination is provided within the UN Charter,
Resolution 1514 (XV), the 1966 International Covenants on Human Rights, and
Resolution 2625 (XXV). Even though self-determination is referred to as a principle
within the UN Charter, the legal right derived from that principle is clearly established
within international law. Also, the "peoples" possessing the right of self-determination
are not only colonial peoples, nor is this right usually accorded to all peoples. Rather,
23


the primary characteristic of those claiming self-determination is their subject status;
they are peoples subjected to alien subjugation, domination, and exploitation. Finally,
state rights do not have absolute supremacy over self-determination. Whether the limit
to territorial integrity comes in the narrow form of a racist regime, in the broad form of
any unrepresentative government, or because of fundamental human rights violations,
the limitation of the principle exists. The right of self-determination, as presented in
these five international legal instruments, will now be applied to the specific cases of
the Black majority in South Africa and the Maya majority of Guatemala.
SELF-DETERMINATION AND THE INDIGENOUS MAJORITIES OF
SOUTH AFRICA AND GUATEMALA
This section addresses the two questions presented: 1) On what basis has the
ANC long claimed and recently exercised the right to self-determination for the
indigenous Black majority; and 2) Is the foundation on which the ANC based its right
to self-determination also applicable to the indigenous Maya majority of Guatemala?
The foundation for the self-determination of the Black majority of South Africa is seen
within five specific areas in international law. In each of these five areas the case of
Guatemala will be analyzed to determine whether the foundations are also applicable to
the Maya majority.
First, the right of the Black majority, as well as the Maya majority, to self-
determination is traditionally established as a right of majority populations that are
disenfranchised from the state. Additionally, the right is accorded to all peoples, or
more specifically all oppressed peoples, by its inclusion as a principle and a right of
24


peoples in the five international instruments discussed above. The language within the
five international instruments differs slightly, but the meaning is consistent.
Second, Resolutions 1514 (XV) and 2625 (XXV) note that the subjection of
peoples to alien subjugation, domination, and exploitation violates fundamental human
rights and is contrary to the UN Charter. Within these two Resolutions, as well as in
Ofiiatey-Kodjoe's (1977) examination of international practice discussed previously,
the pivotal word is "alien." For the purposes of this article, "alien" is defined as a
people distinct and separate in, but not limited to, such characteristics as language,
dress, religion, and custom.19 Therefore, the Black majority in South Africa is without
doubt a people subjected to alien domination as seen through the system of apartheid
employed by the White South African state. Additionally, the case of the Black
majority in South Africa shows that the course of time alone cannot eradicate this
"alienness" as long as the ethnic or cultural distinction remains.
This second foundation is also applicable to the Maya majority which is
ethnically and culturally distinct from its alien subjugators, dominators, and exploiters.
The Maya of Guatemala are unique in language, as exhibited by their relationship to
Spanish, the colonizer's language, a language that"... is spoken as a second language
or not spoken at all ..." (Ortiz 1984, 14). Yet within Guatemala there are over 20
19This definition of "alien" has roots within international law. One of the two principal
requirements within Resolution 1541 (XV) is that peoples be distinct ethnically and/or culturally. The
other requirement of Resolution 1541 (XV) is that peoples be geographically separate in order for
decolonization and a legitimate right to self-determination to exist. Geographical separateness is not
applicable to South Africa or Guatemala because the peoples do not want independence and a new state,
rather they desire control of the present state.
25


different indigenous languages,20 showing distinctiveness within each community.
Menchu (1984) explains that the linguistic differences are a barrier between the Maya
people. "... [T]he linguistic barriers prevent any dialogue between us Indians, between
ourselves" (Menchu 1984, 39-40). But Smith (1991) argues that the Maya linguistic
differences are "... actually a source of cultural resilience..." (31; see also Smith 1992a,
11-12), not cultural weakness. The Maya languages are different, yet the people
consider themselves to be more unified than does the state. Second, "One of the most
obvious ways of signifying distinctiveness lies in dress and ornamentation ..." (Mare
1993, 8). As with language, the dress of the Maya differs from community to
community, yet all are distinctively Indian. Hand woven, multicolored, and often
embroidered huipiles are traditional costume of the Maya, a costume distinct from that
of the ladino culture. Next, the proselytization by the Catholic Church, and later by
protestants, in predominantly Indian areas, may cause some to see a common religion
among ladinos and Indians. However, even though many Indian communities have
accepted the teachings of the Catholic Church, Catholicism within the Indian
communities is distinct from the religion practiced in ladino culture. Menchu (1984)
explains:
By accepting the Catholic religion, we didn't accept a condition, or
abandon our culture. It was more like another way of expressing
ourselves ... That is the way we Indians conceive it. Catholic Action is
like another element which can merge with the elements which already
exist within Indian culture. (80)
20Perera (1993) notes 21 linguistic communities (2), Menchu (1984) notes 22 indigenous
languages (2), and Wairen (1993) notes 23 languages (26).
26


Therefore, in areas introduced to the Catholic church, traditional Indian beliefs have
merged with Catholicism, thus creating a unique religion and belief system (Smith
1992a, 9). Finally, cultural distinctiveness is seen with language, dress, and religion
but also customs or traditions. Menchu (1984) describes different ceremonies such
as birth ceremonies (Chapter 2), harvest ceremonies (Chapter 9), and marriage
ceremonies (Chapter 11) that all show the distinct values and customs of the Maya.
These examples of Maya distinctiveness support Ortiz's (1984) assertion that the
attempt of ethnic transformation by the European colonizers failed in the case of
Guatemala (23).21
Maya communities are not identical in language, dress, religion, or custom;
however, "sameness" is not a prerequisite for cohesion. "On the contrary, ethnicity has
sufficient common elements to justify a generalisation ... Ethnic groups exist, even if
they differ from each other in many respects ..." (Mare 1993,23). As Menchu (1984)
explains, "Our culture is still the same. I discovered that all Indians have a common
culture in spite of the linguistic barriers, ethnic barriers and different modes of dress.
The basis of our culture is maize" (169). Maize is not simply a crop that is the staple
food of the Maya. It is also the basis of the traditional Maya religion, of traditional
Maya beliefs (Burger 1987, 82; Ortiz 1984, 6). "We believe ... that our people are
made of maize. We're made of white maize and yellow maize" (Menchu 1984, 57).
Thus, the Indians are not simply economically dependent upon maize, maize is their
21 The preceding discussion on language, dress, religion and custom encompasses Mare's
(1993) first of three characteristics of an ethnic group, cultural affinity. The second two characteristics
are: "... a sense of common historical origin, a unique 'past' (whether it be from common ancestors, a
common ruler, from the same territory, etc); and an ethnic identity different from those of other
groups... "(11). Both of these characteristics also pertain to the Maya of Guatemala.
27


culture. Hence, even though the communities are not identical, they are all distinctively
Maya, and have remained distinctively Maya since the time of conquest; the passage of
time has not changed the ladinos' "alien" status.
The third foundation for the Black majority's right to self-determination is
found within Resolution 2625 (XXV).22 As noted above, three interpretations of this
clause exist. All three acknowledge a limitation of state rights in relation to self-
determination. As applied to the Black majority in South Africa, it is clear that all
interpretations of this clause are germane. The South African government, prior to the
free election of 1994, was both unrepresentative and racist. The government was
unrepresentative because it completely excluded Blacks from participating; its status as
a racist regime is demonstrated through the system and policy of apartheid. Since the
government of South Africa was both unrepresentative and racist, constituting
fundamental human rights violations, the Black majority's right to self-determination is
further supported.
To determine whether this third foundation applies to the Maya majority, each
of the interpretations must be addressed independently, beginning with the first.
"Systematic human rights violations have been a constant factor in Guatemala for nearly
four decades ... [A]ll observers agree that Guatemala ranks among the top nations in
the world in its level of gross human rights abuses" (Barry 1992, 32; see also Jonas
22Again, this clause reads: "Nothing in the foregoing paragraphs shall be construed as
authorizing or encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and self-determination of peoples as described above and
thus possessed of a government representing the whole people belonging to the territory without
distinction as to face, creed or colour."
28


1991; and Trudeau 1993). Gross violations of human rights continue into the 1990s,
nine years into constitutional democracy, and are overwhelmingly directed at the
indigenous peoples. Thus, the Maya right to self-determination is supported by this
first interpretation.
Second, as postulated above, the democracy enumerated within Guatemala's
1985 Constitution has not been realized. Electoral fraud, the limitation of parties
allowed to participate in elections, and the lack of representation of the indigenous
majority are a few continuations of the pre-1985, military-controlled Guatemala,
continuations now disguised under the auspice of a constitutional democracy. The
continuation of military control within Guatemala further signifies a lack of democracy.
Military occupation, death squads, and PACs were all described as prohibiting political
participation by the indigenous majority. Furthermore, the incorporation of elections
and the election of a civilian president do not prove the existence of a democracy. The
presidencies of Cerezo and Serrano demonstrate the continued strength and power of
the military despite their civilian status and the existence of a democratic constitution.
These examples illustrate the fallacy of Guatemala's democracy and therefore the fallacy
of a Guatemalan government representative of the whole population, particularly in
relation to the indigenous majority population. Hence, the Maya right to self-
determination is legitimized under this second interpretation of Resolution 2625
(XXV).
The third interpretation asserts that the state must be a racist regime, not simply
an unrepresentative government, in order for self-determination to supersede the
territorial integrity of the state. The notion of Guatemala as a racist regime is supported
29


by previous discussions on racism and constructive apartheid. The racism against the
indigenous Maya is well-documented. Societal racism is reinforced by the official,
state-sanctioned racism seen within military policy as well as other Indian-specific
policy. Death squads, PACs, model villages, scorched-earth policy, forced
assimilation, and forced sterilization of Indian women, all evidence state sponsored
racism or constructive apartheid. This third interpretation also applies to the Maya
majority because of the presence of racism and constructive apartheid in Guatemala. In
sum, a Maya right to self-determination is supported by all three interpretations of
Resolution 2625 (XXV), making this third foundation applicable.
The final two foundations for a legitimate right to self-determination of the
Black majority exist as supplements to the five major international instruments
discussed previously. In 1973 the UN General Assembly adopted Resolution 3068
(XXVHI), entitled the International Convention on the Suppression and Punishment of
the Crime of Apartheid,23 Cristescu (1981) explains the purpose of this resolution:
Racial discrimination and apartheid, being based on doctrines of
exclusion on grounds of racial difference or ethnic or religious
inferiority, all of which are scientifically false, morally reprehensible
and socially unjust, constitute an affront to human conscience and
dignity, a total negation of the purposes and principles of the Charter of
the United Nations and a crime against humanity. (35)
Apartheid is connected to the right of self-determination through its association with the
subjugation, domination, and exploitation of peoples as well as its denial of
fundamental human rights. "... [A]partheid, which is directly and inevitably bound up
23ln addition to this specific resolution on apartheid, several other resolutions mention
apartheid, racial discrimination, and racist regimes as contradictory to the right of self-determination and
other fundamental human rights (see generally, Cristescu 1981).
30


with colonialism, represents a monstrous violation of all fundamental human rights,...
and implies the total negation of the right of peoples to self-determination" (Espiell
1980, 32). Also, both the UN General Assembly and the UN Security Council
adopted special resolutions granting the right of particular peoples to self-determination.
On more than one occasion these bodies adopted resolutions affirming South Africa's
Black majority's right to self-determination (Cristescu 1981, 20-1; Espiell 1980,
52-54). The decision to affirm the right of self-determination is undoubtedly based
upon the UN's condemnation of apartheid. Thus, the right of the Black majority is
firmly established within international law by the denunciation of apartheid and these
special resolutions, in addition to the abundant support for the right in other legal
documents described above.
Of these final two foundations of self-determination, only one applies to the
Maya majority. The presence of constructive apartheid in Guatemala yields support for
a Maya right to self-determination under UN Resolution 3068 (XXVIII), the fourth
foundation for a right to self-determination presented herein. However, unlike the
Black majority of South Africa, no special resolutions affirming the right of self-
determination exist for the indigenous Maya of Guatemala. Therefore, of the five major
foundations supporting the Black majority's right to self-determination, four are readily
applicable to the Maya majority. Both questions have therefore been sufficiently
answered.
31


FURTHER CONSIDERATIONS
Even though the right to self-determination for the Maya majority has been
established by looking to the model of South Africa, the exercise of that right must be
addressed in order to move beyond the theoretical exercise into the practical application.
First, the realization of a self-determination claim often leads to competing claims of
self-determination within the same state. Competing claims are apparent in South
Africa as seen with the Zulus and the Afrikaners. As competing claims arise, these
people's indigenous or minority rights must be considered (see Hannum 1990).
Second, in South Africa the ANC acted as the impetus for the Black majority exercising
its right to self-determination. In Guatemala, however, no equivalent to the ANC
exists. In fact, the literature is divided on the issue of "Maya nationalism."
Smith (1992a) argues that a Maya nationalist movement is necessary because
"[t]he Maya have their own special issues linguistic, religious, cultural, and
organizational which Ladinos, whether of the left or right, have never respected"
(22). Both Smith (1991) and Barry (1992) note the beginning of a Maya nationalist
movement in the early 1970s, which "...was quiescent during the violence, and today
is emerging as a real political movement..." (Smith 1991,29). As Smith (1991) notes,
"...increasing numbers of Maya are, in fact, being drawn to 'nationalist' as opposed to
'popular' politics, two causes which until recently were considered one and the same"
(29). Since the resurfacing of Maya nationalism is the mid-1980s, the main focus has
been on "... the preservation and regeneration of native languages ... but longer-term
goals include affording indigenous people 'greater say over their destiny, ... and
32


greater autonomy in the educational, political, social and economic spheres'" (Barry
1992, 228). Even though there is some variation in what different Maya nationalists
may mean by autonomy and self-determination, the bottom line is the fight for their
rights: "... the right to peace, the right to define our own path to development, the right
to educate our children in our own languages and traditions, and the right to represent
ourselves and our culture" (Smith 1991, 33).
The possibility of a Maya nationalist movement equalling the ANC is challenged
in the literature. First, Smith (1991) notes that few Indians involved in the nationalist
movement are "men of maize," the peasants, plantation workers, artisans and traders
who represent the majority of the Guatemalan Maya (30). "In. fact, the nationalists
could be considered a small Indian elite ... whose community or grassroots ties are
weak. ... [Yet] how distant Maya nationalists are from ordinary Maya has to be judged
by other criteria like how closely their program hews to the needs and interests of
those they claim to represent" (Smith 1992a, 3-4). Therefore, an Indian elite at the
forefront of the movement challenges the viability of the movement even though they
may be able to successfully represent all Maya. Second, some question whether the
more than 20 different linguistic communities can unite within one movement since
dissension among the groups dates back hundreds of years (Perera 1993,2). "The fact
that the Mayan nation was once a reality does not necessarily mean that it would
reconstitute itself, or that it has survived in any manner" (Ortiz 1984, 114). Third,
Perera (1993) argues that "... any above-ground indigenous movement can survive
only at the sufferance of the military" (319). And finally, indigenous movements are
seen as an attempt to undermine or divide the more pervasive class movements.
33


"... [N]eoindigenismo has gained some ground and has succeeded in bringing about
the division, alienation, and withdrawal, at least for the present time, of some ethnic
groups from more broad-based popular movements" (Diaz-Polanco 1987, 88). Hence,
the.challenges to a viable Maya nationalist movement are vast.
The primary challenge to Guatemala's indigenous movement, however, is that
most identify the struggle as one of class rather than race. Jonas (1988) argues that the
main issue surrounding democratic transition is that of a class struggle, a struggle of the
80 percent majority who live below the poverty line, rather than the struggle of the
disenfranchised indigenous majority. Frundt (1990) also focuses on the class structure
in Guatemala, the consolidation of the working class and the division of the upper
class. Menchu, herself a Guatemalan Indian, is active in the fight of the peasant
population. She is instrumental in the CUC, Comite de Unidad Campesina (Peasant
Unity Committee), which according to its name, is a class-struggle organization. She
begins this work by stating that "My story is the story of all poor Guatemalans"
(Menchu 1984, 1) which is a statement of class, not race. A historical account of three
different Marxist positions that all collapse the cultural issue into one of class is
provided by Smith. "The Marxist commitment [was] to bring justice, equality, and
full-fledged citizenship to the economically oppressed ..." (Smith 1992b, 1; see also
Diaz-Polanco 1987). A fourth position is also offered by Smith (1992b) which
acknowledges culture as independent of, but secondary to, class.
Despite the strength of the class-based movement, the current tendency appears
to be the acknowledgement of both struggles, not an either/or analysis. "It is now
impossible to ignore ethnic demands, to make them secondary or reduce them to class
34


issues. Guatemala's revolution will be both class-based and indigenous (not either/or)"
(Jonas 1991, 239). Smith (1990) similarly sees an overlapping of the struggles and
notes that they must be analyzed and discussed within each context. "... [T]he authors
in this volume basically believe that class, ethnic, community, and state relations in
Guatemala have always and everywhere vastly complicated each other so that no
general or singular analysis will do" (Smith 1990, 26). Yet, class struggles are deeply
entrenched within Guatemalan society, making it difficult for Maya nationalists to
compete with the strength and history of peasant organizations. Thus, the existence of
an indigenous movement on an equal plane with the class movement appears
questionable.
To conclude, recognition of a Maya right to self-determination based upon the
precedent of the Black majority of South Africa is a vital first step. Acceptance of this
right will benefit not only the Maya majority, but also peoples within other states who
are the numeric majority but essentially disenfranchised.
35


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