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The Lithium people and the fetish from of law: a post dogmatic case study of the Atacama Desert peoples and the brine industry
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This paper looks into the biopolitical ecology of mining and energy operations that extract brine and Lithium from Atacameño socio-‐nature in order to understand the simultaneous process by which collective resources (property) are substituted by cultural commodity fetishism (identity). The conclusion shows how water divides and cultural lawfare racialize conflicts by fetishizing nature/culture binaries in the form of law and indigenous rights.
Atacama Desert people -‐ fetish forms -‐ Extractive industry -‐ law in society -‐ water
Introduction
Like in the rest of the Latin America, Chile’s 21 st century’s mega-‐extractive boom has eluded and imperiled indigenous peoples: this entire process occurs despite Chile is a signatory to the ILO’s Convention 169, a binding human rights treaty recognizing, amongst other things, indigenous peoples’ ownership of their entire habitat, as well as the right to be consulted by the State on any project that might affect them, so that they be asked to grant their informed consent prior to any operation. This particular normative configuration stands in contrast with current social struggles against large-‐scale and depredatory mining practices throughout Latin America, miners which for the most take no heed and of such international law and go about flouting native communities and their rights.
The electric fence1
Historically, the mining and energy industries have been intertwined being that mining is by far Chile’s largest single energy consumer. Mining uses 90% of the power generated by the country’s northern energy grid and close to 40% of the national total. Also privatized under Pinochet, the energy sector is quite straightforwardly in the hands of mining conglomerates. The domestic energy market has no choice but to foot the bill of scarcity, making household energy costs the highest in Latin America despite Chile’s abundant natural resources. Major miners have recently decided to invest in renewable energies, especially solar (PV), but for the most are still unwilling to invest with indigenous peoples, whom on the contrary, would love to develop solar energy companies in order to feed the national grid. So all of these projects are being designed and constructed to operate outside indigenous jurisdictional claims.
1 http://seia.sea.gob.cl/busqueda/buscarProyectoAction.php?modo=ficha&nombre=solar§or=®iones=&presentacion=AMBOS&buscar=true
Also, more than 80% of Chile’s potential hydropower belongs to the formerly public-‐owned electric utility company ENDESA, itself now the property of the Italian energy giant ENEL. Privatized water utility companies are heavily biased in favor of large economic groups, some of which also happen to be large mining groups.
More to the point, in order to supply 40% of the world’s Lithium (as well as 40% of the world’ copper), the mining industry requires massive amounts of energy and water (it is estimated that three-‐quarters of copper’s value is owed to water, but there is not much public information on this).
The transnationalization and proprietorial concentration of common water supplies have Chilean households footing the most expensive water bill in Latin America. Resulting freshwater depletion and pollution has also generated severe ecological havoc in the wetlands, saltpan lagoons and torrential water collection areas of the Atacameño. Desertification is advancing at an alarming rate from the Atacama Desert southward. Some water tables have plunged hundreds of meters deeper than they were a few years ago, resulting in irreversible damage to the subsistence base of traditional agropastoralists. Pastures are now found ever higher and further away from the foothill oases. Governmental lip-‐service to environmentalists has climate change take a whole new meaning, amidst worldwide financial speculation.2 (
The world’s largest Lithium reserves -‐enough to cover the world’s growing needs for thousands of years-‐ are distributed in the Andean saltpans, however, in the territories of Aymara, Atacameño, Colla, Diaguita and Quechua peoples. (CEDHA 20012), so much so, that at present, Chile and Argentina are the world’s two main Lithium sellers. Before SQM entered the market in 1997, most lithium carbonate was produced from a mineral source known as espodumene, but high extraction costs in relation to brine, changed things quite a bit. While in 1995, 65% of the world’s lithium production depended on mineral, in 2007, it fell to 14%, while 86% was extracted from brine. Only three Salares concentrate 85% of the worlds known reserve: the Salar de Atacama (Chile), the Salar del Hombre Muerto (Argentina), and the Salar de Uyuni (Bolivia), a “lithium triangle” (Tahil, 2008).
Lithium’s main buyer is China, which uses it in the headfast development of its energy and technology industries. Yet the world market emerging around this metal poses fundamental problems regarding regulation, so that cheap and abundant Lithium may effectively contribute to a successful transition from fossil to renewable energies amidst the dreadful political (un)certainties of climate change and commodity speculation (including Li 6 for uranium enrichment). In this context, the world market system has no differential treatment for resources like Lithium or, like Rare Earth Elements used in Renewable Energy technologies (95% of which resources are, in turn produced by China, which has forbidden its export). 2 See CEDHA-Centro de Derechos Humanos y Ambiente (2012) LITIO El Nuevo Horizonte Minero Dimensiones Sociales, Económicas y Ambientales, by Franco Aguilar and Laura Zeller, Mayo 2012. Argentina CEDAL Litio. http://wp.cedha.net/wp-content/uploads/2012/06/INFORME-LITIO-FINAL...pdf
This paper hence also addresses the juridical problems associated with a rainbow of multi-‐scalar interests that are vectorized by Lithium in the entire extraction, elaboration and distribution chain, including aspects that relate to intellectual property, geographical indicators and other denominations of origin which Coombe has aptly labeled MICOS (Coombe 2011) http://rcoombe.artmob.ca/wp-‐content/uploads/2011/10/BorderingDiversityandDesire.pdf
Above all, Lithium is a key resource for the countries and peoples that share the Andean highland plateaus, as it in fact forms part of huge groundwater reservoirs that, from the Titicaca down to Fiambalá play a key role in global climate regulation. Based on the problems that the Lickanantai or atacameño people have been facing in the Atacama basin, this paper hence also looks at both, the normativity of sustainable use of the groundwater on which salt-‐pan populations depend to survive, as well as to the conservation of the fragile natural ecosystems of the Desert, which are of great value for scientific research, especially as related to climate change (Grosjean and Núñez 2010): a) self-‐government, territoriality and social participation, co-‐development and benefit sharing in governmental licensing and private exploitation; b) the ethnography of extractive companies and lithium developers a (b) the interplay of incommensurable visions about property and nature that configure the ‘living law’ of indigenous peoples and miners.
Salar de Atacama
El Salar de Atacama es el depósito de mayor calidad de Litio en el mundo. Al ser una fuente de salmuera, la extracción es menos costosa y menos intensiva en energía que la de minerales de roca dura. Ubicado en el sector centro-oriental de la Región de Antofagasta, a 2.300 metros sobre el nivel del mar, alcanza una superficie de alrededor de 3.000 kms2. La recarga de aguas salobres, en conjunto con la continua evaporación por las condiciones climáticas de extrema aridez, generó un cuerpo salino central llamado núcleo, de aproximadamente 1.400 kms2
Las concentraciones de litio en el Salar de Atacama son las más alta entre los salares conocidos, con 1.500 ppm en promedio y variaciones que van entre 600 a 5.000 ppm. Dada estas características, el Salar de Atacama constituye la reserva de litio de mejor calidad en la tierra. Por otra parte, las características climáticas del desierto de Atacama, permiten que el Salar presente también las mayores tasas de evaporación del mundo alcanzando los 3.700 mm/año, lo que disminuye los costos de procesamiento notablemente.
En términos absolutos, el Salar de Atacama es el segundo en tamaño de depósitos de Litio (superado por el Salar de Uyuni), pero presenta una notable ventaja económica en la recuperación de los contenidos de litio.
Recursos en el Salar de Atacama
En 1978, fueron estimadas reservas en 1.290.000 toneladas de Li., en un área de 420 kms2 en el núcleo central del Salar, a 20 mts. de profundidad, y con una concentración media de 1.250 ppm. Por extrapolación a un área de 1.300 kms2 y 30
mts. de profundidad, se infirieron recursos por 3 millones de toneladas de Li., que son las cifras que publica anualmente, hasta el día de hoy, la USGS. CORFO, por su parte, estimó las reservas del Salar de Atacama en 4,5 millones de ton. de Litio (González, 2000). Inicialmente, las reservas estimadas de litio en el área arrendada a SQM (819 kms2) fueron de 1,8 millones de ton., estimadas a 40 mts de profundidad del acuífero (Moscoso, 2003).
En un reciente estudio contratado por SQM, que solo abarcaron la zona arrendada a SQM, y que incluyó hasta 200 mts. de profundidad para la extracción de las aguas, se establecieron reservas de Litio en torno a los 6 millones de toneladas (ENVIROS, 2008).
Evans (2008) señala que si bien el total de reservas de todo el Salar de Atacama no es conocido con exactitud, sí se pueden hacer estimaciones tentativas: para las zonas que son arrendadas a SCL se estimaron en sus inicios reservas por 500.000 ton. Li. Para las “franjas de seguridad”, esto es, las áreas entre las propiedades arrendadas a SCL y SQM, y las áreas no reclamadas en la zona norte del Salar, se estimaron reservas por 400.000 ton. de Li. Todo lo anterior sumaría las 6.900.000 ton. de Li estimadas como reservas totales del Salar de Atacama.
Lithium Reserves and Resources, RK Evans, Energy, Vol. 3, No. 3, 1978. 37
Gráfico 5. Estimaciones de reservas de Litio en el Salara de Atacama.
Producción en el Salar de Atacama
SCL comenzó la producción de carbonato de litio desde sus recursos en 1984 con una capacidad de producción de 13.000 toneladas anuales. SQM comenzó su producción en 1996 con una capacidad de producción de 18.000 toneladas anuales. Se estima que el total de carbonato de litio equivalente (LCE) producido en el Salar de Atacama a la fecha es del orden de las 500.000 toneladas, lo que representa cerca de 100.000 ton. de litio metálico.
La planta de SQM para la producción de carbonato de litio, ubicada en el salar del Carmen, cerca de Antofagasta, tenía una capacidad inicial de producción de 28.000 toneladas por año de carbonato de litio. Actualmente está en condiciones de producir 40.000 toneladas anuales de carbonato de litio.
Si bien la extracción acumulada representa aún un bajo porcentaje de las reservas del Salar, en cualquiera de las estimaciones de reservas que se tienen, Tahil (2008) sostiene que estas 100.000 toneladas se han extraído del epicentro del Salar, zona de 30 km2 y 35 mts. de profundidad, con las mayores concentraciones de litio del Salar (superior a 3.000 ppm), y reservas estimadas en 450.000 ton. de Litio. Por tanto, ya se habrían extraído cerca de un 22% de las reservas de alto grado de litio metálico del núcleo del salar, incluso aventura “… y posiblemente un 63% de los mejores depósitos sobre 4.000 ppm, junto a eso” (Tahil, 2008).
Costos de la Producción en el Salar
Dadas las características antes indicadas del Salar, los altos niveles de evaporación y grados de litio de la salmuera, tanto SQM como SCL muestran los costos de producción más bajos del mercado. Incluso, para SQM estos costos pueden ser aún más bajos dado que recupera litio como un co-producto de la producción de cloruro de potasio.
En el 2004, se estimó que los costos de producción del Salar de Atacama fluctuaban entre los US$0,4 – 0,5/lb (Pavlovic, 2004). Yaksic (2008) estima que agregando los costos de capital que significan los proyectos de ampliación de la planta productora de carbonato de litio, los costos unitarios totales estarían entre US$0,5 - 0,8/lb. SQM por su parte, ha señalado que durante el 2008 los costos de producción se incrementaron como consecuencia los mayores costos de energía que significó el cambio de gas natural, el deterioro del valor del dólar con respecto al peso, y los aumentos en los costos de algunos insumos, como el de la ceniza de soda. Lo anterior sumado a los costos de capital e inversiones en curso, habría llevado a un costo total de producción de carbonato de litio en el Salar de Atacama de US$ 2.200/T, o bien US$0,99/lb (SQM, 2008c).
Peine, the Lithium People3
“Salt is most important to Peine, which they extract from the Salar, where villagers exploit a mantle of common salt under layers of unedible ones [sulphates]. Salt extraction is regulated by a superstition that forbids it during certain periods of the year”. Mostny 1954, 17.
The Atacama Desert is the hyper-‐arid middle depression between the cliffs of the northern Pacific coast and the so-‐called Puna de Atacama (an immense and unique highland habitat now divided between Argentina, Bolivia and Chile), and it has been historically and commonly known as the “Despoblado de Atacama”.
Like other indigenous peoples in the Americas, the Lickanantai or Atacameño struggle to defend this territory from the extractive industry. Although official land surveys have identified it on many occasions, the states of Argentina, Bolivia and Chile nonetheless consider the land and it’s underground as ‘state’, ‘fiscal’ or ‘provincial’, and grant exploitation rights or “concessions” to extractive companies that drain communal habitats4.
Most of the lithium and copper in the world and the water required to treat it and transport it, are extracted within five million hectares of indigenous territory (officially
3 “El Pueblo del Litio” was originally the title of a newspaper article by Carla Mandiola referring to Peine, village in which most of the research for this paper took place (in the La Tercera edition of 21/10/2012 http://diario.latercera.com/2012/10/21/01/contenido/la-tercera-el-semanal/34-121061-9-el-pueblo-del-litio.shtml . 4 The combined effects of mega-mining, drought and the accelerated privatization of water since Pinochet’s rule have resulted in the main Loa basin drying up well before it reaches the Ocean. The endorrheic Atacama river carried, in turn, 1,000 l/s ten years ago and now only 400 l/s. More than ten villages and ranches have depopulated over the past 50 years.
measured by the Chilean State over 15 years ago, but not recorded in the public registry as required for effective protection). So if Atacameño communities legally own their territory according to the 1993 Indigenous Law and since 2010, by Convention 169 of the ILO, they lack the written and formally registered title deeds normally required to prove rightful possession in court. Thus unrecorded, indigenous territory is in practice considered to be terra nullius and remains registered in the default category of ‘fiscal’ or State land, title which according to government statistical information, covers more than 50% of the country’s surface5
Marx famously warned that things like value, capital, profit, rent and tax could not be discovered with the aid of a microscope and chemical analysis. The study of different socio-‐natural subjectivities and senses of justice operates with similarly ‘artificial’ and difficult to deal with abstractions in the Atacama Desert, the world’s major measured lithium reserves.
The Atacama Desert is hence an ideal social laboratory of sorts: Here the macro and micro effects of world-‐scale mega-‐extractive operations collide visibly with indigenous peoples’ lives, in the messy legal claims to labor, land and water required by the mining operations. Like competing territorialities, water and lithium are incommensurable with the socio-‐natural worlds they give life to, and such water divides raise questions on the lithium industry that is shaping the world culturally, politically and economically (as medicine –we all have lithium in our bodies-‐, as a key element in the new technologies and in the transition from fossil to renewable sources of energy).
This work focuses on the bodily imaginations born out of commoditized interrelations, and aims to carve out the social forces behind such cultural abstractions and their direct observation within the narrow biopolitical limits set by desert’s extreme natural conditions.
A native race for lithium? Transnational Mining, Energy and Water
5 Since land and water were legally separated by Pinochet’s water privatization code and policies, groundwater exploration and exploitation therefore constitute a grey economy. Although surface water can be freely traded, groundwater exploration licenses require the prior authorization of the owner of land in which water is found. It is the State then, through its Ministry of National Goods (previously titled the Ministry of Lands and Colonization) and the National Water Directorate that grants groundwater exploration licenses. It does so without consulting, and invariably against the will of, the indigenous communities whose territories are directly impacted. TNCs naturally have every reason to follow suit and likewise deny indigenous territory in practice “as if” it didn’t exist.
Lithium sales at around US$6.000/T in this oligopoly market, and Rockwood and SQM want to keep its price in the lows, ao as to prevent competition. The real game is the value these or related companies add to Lithium, mostly outside the country, through the different patents they have over diverse applications (from batteries to antidepressants).
“Peine was a forgotten village, lost among the desert mountains, until 1984, when lithium changed it forever. That year, a US company with a national brand name, Sociedad Chilena del Litio, SCL, came to the Atacama Desert and started to extract
a mineral substance which was hardly kown to the local inhabitants. With the arrival of company workers and contractors, Peine had to adapt to the new customs and the new people who went to live there. Today, close to thirty years later, Peine is Lithium” (Carla Mandiola italics in the original, El Semanal, La Tercera, 21/10/2012).
“In Peine there is unconformity with these projects that have been authroized by the State, because all the resources that should reach our pueblo because of the effects lithium plants have ob our lives, are not coming. Everything is basic here: education is rural, we ha ve dispensary with a doctor that comes once every month. We are abandoned”, Ramón Torres, Peine’s strongman says’ (Carla Mandiola-‐ La Tercera 2012)
“It is night-‐time and 12 worker are playing a football match in the encampment’s synthetic field. Four spotlights brighten the scene. Three men walk by in the dark street alongside the camp and look at the workers play.
-‐See how unfair it is? We have nothing they have.
-‐Well, so it is ¿Beers anyone?” (Carla Mandiola – La Tercera).
Law thus first reifies people and things (natives and minerals)– like culture and nature – as kernels of mutually constitutive opposites, further commoditized schizogenically by financial flows (one of the functions of law is to objectify relationships by making them commensurate in terms of life, value, property and revenue). This binary field is one where state-‐recognized indigenous groups struggle against large-‐scale plunder and commoditization in the fixed managerial terms of the State’s and Atacameños’ competing claims to territorial ownership, where the Atacameños have the favour of the law, but not of government.
Taking one thing for another
Law does not conjure Atacameño subjectivity as a claimant/grievant so much as it actively constitutes it as a commodified object of knowledge, to be managed and policed through various modes of positive intervention, especially through spectacular media (Also Supiot 2011, Rutherford 1999, 56; Luke 1999, 144-‐5; Escobar 1998, 56). The commoditization of Atacama Desert cultures is hence the direct consequence of ‘natural’ extractions by the mining industry, where water is the ideal prism through which to observe the productive relations between the fetishes of nature and culture: water justice refers to problems which lend relevance to recent debates on the place of law in society that address the multiplicity of socio-‐natural worlds, relational v. dualist ontologies, networked v. structural forms of analysis and radical particularities and even a renewal of the question of what constitutes life, as the -‐Foucaultian-‐ object/function of law i.e.: as governmentality.
Law and territory unbound: Ethno-‐technical territorializations
“Here I should include the custom [Peine has] to collect salt only in the winter. To seek it in any other season would freeze the agricultural fields; there is here an association between white salt crystals and the crystals of frost, equally white” [under the label of Superstition] Mostny 1954, 97
Albeit incommensurable with the political rationality of commoditized market exchanges, native knowledge practices are not necessarily incompatible, incomparable or untranslatable6.
Conceptions about life widely held amongst the Andean like amongst most Latin American peoples, have mountains produce people, animals, plants, minerals and all material thing; each living mountain is endowed with a primary ontological status, forming a lawscape of cosmic personalities with distinct Andean mythoi which describe their age, sex and rank, as well as productive, reproductive and technical functions and skills (Barros 1998, 2003). Mountains are also ascribed with autonomous distributional authority over water. Shared values and everyday knowledge practices of balanced reciprocity and exchange are embedded and interrelated by male ritual specialists known as cantales, who regularly address and petition each mountain-‐owner (Mayllku in Quechua, Achache in Aymara, or “ancestor”) in sight by its toponym in Kunza (a now extinct language)7. The time-‐less and space-‐less feminine giver and receiver of life, Pachamama, is also seduced through pagos (payments) and literally cajoled to further soak up the Mayllku’s water: ice, snow, cloud, mist, rain, water-‐drops in all recognizable forms are sung and danced to from a printout written in the extinct Kunza language. Together, Mayllku and Pachamama have biopolitically generated and regenerated the communities that they water, but failed to perpetuate their common language. Tutelary mountains are the distributional fetishes which help the Atacameños to produce water, and water is the commodity that represents (natural and supernatural) relations of production. Water is hence also a fetish, life-‐giving substance that results from equally fetishized forms of supernatural distribution, whether through mountain rituals or through the law.
The insides of these mountains and caves, so filled with coveted skills and riches, are watched over by the Mayllku’s jealous guard of what sometimes are dwarfish devils (supay) and others, a whirlwind with the shape of a mestizo rider, also form part of the Deserts’ supernatural equation. Such anthropomorphized mountains and their guards punish and strike with lightning and flash-‐floods. They can and do bless, maim or kill; they decide drought or rain, holding real power over life and death. Mayllkus and ancestors become infuriated when not adequately paid attention to; in such occasions they will wrathfully take the lives of Indians and miners alike. But such Mayllku’s are
6 Andean saint and devil worship in the mines have been explained masterfully by the likes of Nash, Platt, Taussig, Isbell, Bastien, Saignes, Albó, the regretted Olivia Harris and Thérèse Bouysse-Cassagnes; on the other, Agamben, Bernand, Gruzinski, Supiot, Tierney along with a cohort of excellent ethnohistorians have demonstrated the deep-running historical connections between widespread notions of sovereignty, law and supernatural dogmas shared by most world religions, including Catholic –and more recently Protestant Latin America. 7 When the work of collective irrigation channel cleaning takes place, and especially during harsh drought periods, the cantal and his helpers will drive to the sea, which is 4 hours away, to collect and bring back a bottle of sea-water which Atacameños offer to their particular tutelary mountain by being poured on a special mesa (ritual table).
slowly being replaced by the overpowering distributional authority of the state through law, and this as an extension of their common fetish potency.
In early 2009, –Sociedad Chilena del Litio, the second largest lithium producer in the world, now Rockwood Litio S.A. submitted a project to “expand” its evaporation pool facilities, which they had built but that had thus far lacked the required social and environmental licenses to operate, and was now seeking to get them.
I worked with Peine to bring their concerns to both company and state officials directly, on many separate occasions. After a few meetings with patronizingly racist
company officials claiming to be entitled to extract as much brine and lithium as they pleased (while refusing to acknowledge the community’s territorial rights), Peine’s assembly decided to take legal steps to stop the project from materializing, and so we did. Once again, the Andes’ collective distributional reputation had been called into question.
Threats loomed over, large as the devil’s law, until to everyone’s surprise the Regional Environmental Commission (COREMA) reached the landmark unanimous decision to reject the Rockwood project, a particularly brave choice considering all its members were government-‐appointed. COREMA took explicit heed of the arguments we had woven around their human rights.
TALATUR
By necessity expressed in terms of an ethnic cultural commodity, Atacameño collective action against Rockwood Lithium (formerly Sociedad Chilena de Litio), was instrumental to counter discrimination over the hence fetishized indigenous property, but it was also instrumental to reinforce state discrimination that reifies this very same property through law and in this case, through an Impact-‐based agreement with the community. Yet neither property nor identity are really at stake, but water and salt, that in the common political world of bio-‐fetishes (and unlike bodies, dead or alive, despite these are mostly water and salt) have become a transparent commodity with supernatural powers (over life and death) that are hidden in lithium and CSR compacts and Impact Benefit Agreements.
By further substituting native water (life) with cultural property (death), Atacameños themselves are further forecast and re-‐cast as a commoditized future in the tourism industry (in terms of archaeological and natural parks, stadiums, urban equipment,
etc…), and law seen again as the transformative fetish that enacts this split temporality, especially through the judicialization of natural resource politics8.
White gold, miners and media
Technical action over water’s extreme ‘nature’ in the Desert, reminds one of the ways that background ‘culture’ feeds the collective imaginations that corporate finance wishes to grow and manage separately from nature. Considering that the notions of land and people have mutually constitutive intellectual properties in Euroamerican law then territoriality and culture can be conceived as mutually reinforcing intellectual projections of one another (Barros 2004, Strathern 2005).
Neo-‐liberal Chile’s privatized water and lithium are the ‘transparent commodity’ or vital substance par excellence that both configure and conceal the racialized backdrop of extractivism. The intimate social life of these, the lightest substances of all, can help us to understand how fundamentally unequal, legally racialized property regimes, are legitimized spectacularly by means of the fetish form of law and related propertied forms of cultural commoditization (See Coombe). For if extractive companies have a stronger grip than ever on everyday life in Chile, they have achieved this through evocations of “sovereignty”, “intellectual property” and “ownership” that are enabled by law operating in tandem with the media to “undercommunicate” the fundamental inequalities involved, as around water.
As envisaged and commoditized in the fetish form of -‐segregative and individualistic-‐ law, water divides have become central to Atacameño socio-‐territorial organizations. So if Atacama Desert peoples do sometimes successfully defend their mountains’ water and manage to re-‐enact their saline sociality by insisting on their own territorial understandings of lithium and its notional returns; on the longer “necropolitical” run (M’Bembe 2003), they cannot prevent the overall diminishing returns of sui iuris revenue streams-‐cum-‐zombie rights, ethnic dislocation and crushing de-‐territorialized sub-‐urban poverty. More precisely, hydraulic communities are de-‐territorialized by the same force that extract groundwater and community life as commodities, against their will, by the power of Chile´s mine-‐controlled media and state. This is why Atacameño territorial identity has today become the token (silent) answer for unfair relations.
Now look at the life and trials of Atacama’s 33 miners, who were trapped 700 meters underground for over two months during 2010. The live-‐coverage rescue effort highlights a few of the biopolitical techniques of modern state law, extractive
8 Not even in its beginnings was capital ‘territorial’: its de-territorializing power consists in taking as an object, not even land itself, but the ‘materialized work’ or merchandise… property is not over land or soil, nor even over the modes of production, but over abstract convertible rights (Deleuze and Guattari 1980, 567).
companies and media celebrity culture in order to show how these combine to transform both miners and Atacameño pueblos into equally disposable, devilishly exposed skin-‐bound bodies.
More is now known regarding the measures taken by the (government-‐hired) private production company to avoid communication glitches and filter messages and images as they came out of the pit. Unlike other messages, “Fuerza al pueblo Mapuche”– a cheer of support for the plight of the Mapuche people in southern Chile – was not conveyed by the media, the government’s production team going so far as to suppress the message, “causing unease amongst the miners’ families” . Moreover, throughout the media-‐frenzied ordeal of the miners’ accidental captivity (and for over 80 days in total), a group of 34 Mapuche prisoners engaged in a hunger strike for ancestral land rights, as well as to protest the application of Pinochet’s long-‐surviving Antiterrorist law (for which the Chilean state has been recently summoned by the Inter-‐American Court of Human Rights). In contrast with the coverage of the miners’ every movement in the north, the Mapuche prisoners in the south received no attention from the mainstream media.
And in effect one can claim that in the era of digital reproduction and media celebrity culture, racialized fetishes themselves “are” the product by re-‐presenting -‐as Pietz argues-‐ complex social realities “as if” they were the product of radically heterogeneous societies, say, as in those societies in which Indians and extractive companies fight over water, and are seen to talk “right” past each other; where mining company ‘operation relations’ meet indigenous stakeholders and related “grieving parties” in the levelled language of money, not lithium, nor water.
Inversely, the parallel silencing or strategic “undercommunication” of sustainable hydraulic cultures has individual Indians come through as if they were dead and inert, issued from an abstract and waterless culture (Collier and Goffman 1959, 1971). The massive financial benefits derived from the extraction of water and minerals denature and crush the values and lives that indigenous peoples share around them9. Law is here hence seen to mediate incommensurable repertoires because of one of its cross cultural functions as a fetish form transmuting invisible incommensurables into visibly differentiated reality claims, persons and things. Law is itself a spectacular commodity that enables media and mining companies to ACTIVELY conceal the plights of collective
9 Once commoditized, Atacameño culture relies on the subvention and fabrication of other racialized commodities, like country brands, ethno-chic designs, world class heritage and archaeological sites, or the promotion of ‘special’ capacity building schemes, all of which are further abstracted through mainstream media’s lite-cultured, fit-for-tourism packages as commonly ‘sold’ to the Atacameños and their avid public by miner and government agencies and clienteles alike. The capitalist paradox here is that, reified and individualized, Atacameño culture becomes the ‘other’ of water and lithium as ‘extracted nature’, a bio-political fetish for capitalism’s paradigmatic contradictions, an object inevitably accounted for in terms of death
nature/culture differentiation– “multi-‐nature” in Latour’s sense–by transforming them into the reality shows of media celebrity cultures (as in the Atacama’s 33 saga).
The idea of justice here becomes the imagined (delayed) possibility of territorial commensuration10. As elsewhere in the region, the politic which consists of “delaying” the implementation of indigenous rights to resources not only benefits national and international elites (including ethnic brokers) in terms of financial rewards, but simultaneously promotes perpetual “historical debts”. Atacameños have today become the token (silent) answer for unequal relations to water, as commodified by industry into social capital-‐cum-‐tourist attraction, substituting ‘culture’ for ‘nature’, company shareholder’s ‘value’ for peoples shared ‘values’.
Atacameños and poor miners alike are culturally and politically capitalized and programmed as exclusive ‘relic’ identities that, far from being collective in their territorial knowledge practices, are reduced to individual indigenes; the ‘barest life’ of Chile’s national casting machine11.
10 Mountain-owner authority is abstracted as supernatural injunctions that represent relationships over water as legally commensurate and rational, in an ideal world of words and deeds where all is ‘right’. In-formed and re-cast thus by the fetish form of law, partial restitutions and substitutions feed Indian stakeholder grievances against extractive TNCs that put traditional livelihoods in peril. Token devolution of archaeological sites and free lite-cultural shows obscure deeper running problems and rampant inequality. 11 The Comaroff’s assertion that global Ethnicity Inc. is the upshot of cultural commoditization a.k.a. ethnic branding (just as nation branding and Divinity Inc.), overlooks how this might be the direct product of resource and environmental commoditization. The global extractive industry uses Transnational-Ethnicity Inc. as a legal trope that operates as a human rights clearing house for the State; its biopolitical task then being to account for the people in and out of the loop, dead or alive, and certainly not to act as guarantor of human dignity, as any human rights practitioner would hope. Lawfare grafts new corporate skins as so many knowledge-skills or masks on the semblance of collective action, eventually growing new paper fences as so many ‘incorporated’ fetishes inside the law. At the same time, the paper-chase environment generated by possessive nominalism mops up the lands of their riches.
The fetish form of law
Because the modern legal order organizes related political personhood claims and freedoms as matters of distribution, property, identity, rights and justice, the entire process of cultural commoditization results in the endless paradox that has the uncritical use of these managerial categories end up reinforcing the very distributional authority that is being contested in the first place.
Once disembedded and individualized in the process of resource commoditization, socio-‐natural worlds reclaim their relative ontological position as collective forms of nature in the racialized chromatography of Chilean socio-‐economic differentiation (Barros 2008). The darker-‐skinned legal/illegal Indian and/or poor miner of Latin American societies unwillingly perform, then, the classic biopolitical trope with which States traditionally contextualize, exoticize, make visible and finally capture postcolonial poverty by defining it in racialized terms, cyclically erasing and then inscribing the Indian in “special” property registers that -‐ although forecasted on the back of equality-‐ end up enacting, combining and reifying economic relations in the naturalized terms of caste and class inequalities, as is currently the case for all of Latin America (Barros 2008) .
The “health, sanitation, birth rate, longevity” and, importantly, race and even religion, of a population all come to be regulated by the gaze and mechanisms of the state in its enterprise to make life (2003b: 73). Foucault thus understands racialization to be indelibly carved into the workings of the state that necessitates racism as “the break between what must live and what must die” (2003c: 254). By imposing distinctions along race differences within a population, the death of the racially categorized other is posited as allowing “bio-‐politically correct” life to proliferate. “In a normalizing society, race or racism is the precondition that makes killing acceptable”, since only racism can serve as “the precondition for exercising the right to kill” of the state (2003c: 256).
This understanding of the fetishistic power of law to “let live” was first highlighted by Foucault and later realigned with the sovereign “power to kill” by Mbembe’s theorization of necropolitics. Foucault locates the transformation from sovereign power “to take life or let live”, to the current power to “make” life and “let” die, in the nineteenth century, modern definition that “does not erase the old right but which does penetrate it, permeate it” (2003c: 241).
In fact, mining is permanently “killing” or “letting die” the Indigenes it has to constantly re-‐create in order to continue to extract the hyper-‐individualized bare bodies of the miners from their graves. Collective nature becomes commodified into corporate image and ‘share value’, as duly reflected in TNC publicity, where native miners’ faces are used as so many operational masks that add share value .
In M’Bembe’s words, such politics do indeed appear to be “the work of death”, where sovereignty is expressed as “the right to kill” (2003:16, also Benjamin). The extractive industry hence “cannibalizes” oasis life, draining and substituting it with ‘lighter’, pre-‐packaged culture to be shown, just like t-‐shirts on the miners’ barely skinned bodies.
Global media coverage of the 33’s rescue also had the indirect effect of diverting attention from the responsibilities behind the accident along with Mapuche territorial
claims and sense of injustice tied to their relative lack of (legal and media) power, so much so that the naturally shared values and emotions brought on by the miners’ drama were transformed into company share value in terms of corporate image (Charts). The rescue boosted the country brand along with Piñeras’ public image, while simultaneously downplaying the extractive industry’s blatant abuses and the plight of Chile’s peoples.
Recent inquiries into the modern workings of law in society acknowledge the weight of religious underpinnings that anchors Euroamerican legal common-‐sense. In Homo Juridicus, for instance, Supiot considers the ongoing influence of Judaeo-‐Christian dogmas in today’s modern law and science, where contract and research projects function much as did oaths between parties which invoke a monotheistic deity as guarantor. The State (and the international community by extension) is pictured to be the guarantor of human dignity and freedom to engage in such conventions. While this analysis hints at the history of a socio-‐cultural mentality that might account for the pervasiveness of law and contract today, Supiot’s particularistic–and indeed very positivistic–model has yet to provide an overarching analytical framework that may account for the existent plurality and interdependence of the religious and the legal, on how related normative ideas flourish by moving from one to another in concrete spheres of interaction, usually over resources, but also over labor. Supiot’s understanding of the anthropological function of law provides ample means with which to historicize the fundamentals of transnational legal pluralism (Zumbanzen) a task which has been partially undertaken in his Spirit of Philadelphia.
Imbued with religious connotations, the fetish form of law is a particularly helpful analytic device, moreover: it helps to see that, everywhere, law is plural and works out relationships between the notional persons and things that it creates from its own rhetorical environments, and such notions usually rely on linguistic practices, graphic techniques, religious assumptions or dogma. Yet this should not blind the observer from seeing how law, while it certainly incarnates dogma, also mediates incommensurable repertoires of notional persons and things -‐not only because of its deep grammar in common with the transcendentals of religion, but rather because of one of law’s properly meta-‐linguistic cross-‐cultural (and cross-‐religious) function, that of biopolitical fetish transmuting invisible incommensurables into visibly -‐and very often, linguistically-‐ differentiated reality claims, persons and things alike.
So while it is evident that pre-‐Columbian territorial knowledge practices have developed separately from Western modes of thought -‐as different intellectual universes-‐ it is equally true that, thanks to legal language, such practices also managed to stay at step with the emergence of modern Latin American property regimes (amongst other graphic regimes wonderfully accounted for in Gruzinski’s The Mestizo Mind) (Yanakakis). The point is that indigenous titling sets itself both against and
beyond imposed forms of state-‐territorial (and personal) commensuration, intractable to foreign convertibility, excluding any common measure of valuation, although not alien to balanced and unbalanced reciprocity and exchanges.
The same bureaucratic artifact (a land title) can activate or adduce (Gell) different rationalities (in titling) which are hence only partially connected by this fetish “productive misunderstanding” (to retake Bohannan’s insight), letting shamanic “understatements” prosper alongside property “overstatements” in terms of colonial and postcolonial graphic techniques and power.
Amongst historians of law and religion, Tierney stands out for his precise articulation of the emergence, evolution and widespread domination of the notions of natural and subjective rights in Europe and Latin America, especially as cast in terms of property – beginning with Greek philosophy and Roman law, through early Judeo-‐Christian medieval scholasticism (Gratian, Aquinas, Henry of Ghent, Marsilius, Gerson). His understanding of the importance of the “second scholasticism” period that sprung from the Spanish conquest of America (through the works of Suárez, Vitoria, de las Casas, de la Veracruz) is particularly enlightening, for it covers the period when the doctrine of natural law began to differentiate subjective rights (positive freedom/power) from objective rights (limits to freedom/power), with particular and explicit consideration to the collective plight of the colonized natives and their recast, post-‐pandemic patron-‐sainted communities.
This revolutionary scholarship shook the moral foundations of the Spanish Conquest, with deep influence in the way we currently imagine Latin America and the world at large, i.e. in the terms of democracy, sovereignty, human rights and subjectivity, identity and property -‐which so often take the objectified form of commodities, reversing the territorial equation.
This paper’s critique of law’s technical affordances parallels critiques of fetishism in the understanding that they are both self-‐alienating acts, the consequence of which is such that they are seen to be supernatural and thus unaccountable. Modern Euroamerican law commoditizes incommensurability as rights which like fetishes enthrall their creators –creators who thus become the passive recipients of the very power they have created, a power that is deified and animated to the degree that humans deny their collective authorships. Indeed, with law like with fetishes, temporalities become things measured and abstracted from social relations, and like other products of personal interrelations, are no longer seen as such token of human relations, but as a thing that stands over, controls, and even defines “bare life” in the biopolitical sense.
This ‘unreason’ at the core of law necessarily gives rise to senses of (in)justice that are mutually unaccountable, as they mediate incommensurable repertoires of notional persons and things. Again, this is because of the deeper, more cross cultural function
of the law as a fetish that transmutes unaccountability into visibly differentiated reality claims12. This fetish always-‐is agentive, an irrational ratio that hinges incommensurable socio-‐natural worlds, or spheres13.
It remains the case that Chile’s rampant social inequalities can be largely explained in terms of energy and water; while city-‐dwellers are crushed by ill-‐health, debt and demise, none more so than the country’s indigenous peoples who are chipped off the landscape with each blow (along with individuals, birds, plants and things). The extractive industry hence cannibalizes Atacameño life, draining and substituting it with ‘lighter’, pre-‐packaged culture to be shown, just like on the Thank You Lord t-‐shirts on the Atacama 33’s barely skinned bodies as they were extracted from the “devil’s bowels” in the Phoenix capsule. This is not necessarily the picture the world took away from the rescue of los 33, but it is a picture worth bearing in mind. In Chile’s Atacama Desert, law in society still pits God with the Devil, in more supernatural terms than ever
Conclusion: Consenting to die (for lithium)
In this age’s global extractive boom, Indigenous territorialities in all of Latin America increasingly engage in asymmetrical negotiations over sovereignty with different state-‐backed industries: this is the case in the Atacama Desert (Chile) where access to resources is framed in terms of special consent rather than around general notions of territorial property and sovereignty. Related socio-‐legal scholarship, politics and activism have likewise intersected in the issue of Free Prior Informed Consent rather than around the effective implementation of indigenous property rights.
A multiplicity of Indigenous human rights were recognized in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which amongst other effects, has strengthened the interpretive framework for the implementation of Convention 169 of the ILO amongst signatory and non-‐signatory countries of the Inter-‐American Human Rights System. The UNDRIP leaves no semantic room for two-‐timing indigenous peoples’ rights: Uncloaked from their previous ‘domestic’ postcolonial condition, indigenous peoples are now more fully recognized as international legal subjects than ever, but they are left no other choice than to claim their territorial self-‐determination
12 Commodities (dead or alive) come to be cherished as real objects akin to inert things, but on the other hand, they are also thought of as supernatural animate entities with a life force of their own akin to spirits of God (like money). In a higher order level, this same ambivalence of commodities characterizes laws agentive power as the biopolitical fetish of life and death. The metaphoric ‘deal with the devil’ would itself be an indictment of political forces that make men barter their souls and senses of belonging to a broader population, for the attractive yet no less destructive power of commodities 13 Taussig thus presents individuals dislocated from the community when wealth exists alongside crushing poverty and economics triumph over ethics, when production, not life is the aim of the economy, and commodities – as so many gods and devils – rule their creators.
1� 5/10/12 3:12 PMComment [1]: greatwaytoend
as a basic human right of autonomy and property, life and death, water, and all, by reinscribing the scripts of colonization into their practices.
While territorial self determination is at the core of indigenous peoples' rights and claims, the legal mechanisms explained above have de-‐territorialized and re-‐framed issues over property as a matter of mere consent and “impression management”. As cast in the asymmetrical terms of common FPIC negotiations, the intersections Euroamerican law and rights discourses have with indigenous practices of territorial self-‐determination (sovereignty) are effectively undermining environmental protection mechanisms to the overall benefit of extractive TNCs. The relationship between indigenous and national sovereignties in terms of FPIC, in fact undermines both indigenous values and related long-‐term ecological concerns. The bottom line is that Latin American states are unwilling to grant the indigenous peoples the possibility of effectively vetoing extractive projects, and consider that the results of consultation with indigenous peoples is non-‐binding in legal terms, a mere opinion. So that when such peoples take to the streets and mines to stake the rights to territorial autonomy that states do not want to abide by, repression is not far.
A sense of inevitability thus arises from the DRIP’s legal chronicle of an announced ethnic group, “sense of inevitability” that heralds unfettered genocide in resource-‐rich indigenous territories across the world, often under the guise of what one might call called ‘low intensity’ lawfare. Inscribed in the international legal sphere as ‘soft law’ with pretensions to redress and repair historical injustices committed against indigenous peoples, the legal historicity of governments’ disciplines and punishments dominates alone, so unbearably so that past and present injustices become ever more pressing, despairing and violent, to paroxysm. Euroamerican notions of property become rather irrelevant in this explanatory context, as they fail to withhold any intrinsic worth as a fixed managerial term for cultures in motion. Historically, it has been shown to operate as part of but one of many kinds of deterritorializing alienating lite-‐cultures.
In sum, while commodity fetishism obscures the relations of production, it also commoditizes reproduction (of bodies), labor (as wage), consumption (as money) and distribution (as exchange).
Mountains, like law, refer us back to the cognitive fundaments of any distributional reputation (or authority). The first, the Andes, has slowly eroded and drained its immanent power to benefit State and TNC extractions, where law operates and reproduces the competing relationships at virtual stake (e.g. stakeholder grievances). Fetishism is thus also intrinsic to the living law, or law from below (power-‐subjective rights). In its more complex institutional form, a super fetish regulates smaller scale simulacra, this is to say, the relationships between relationships (as limit to power or
objective rights) as cast in terms of their relative VALUE (dead or alive, normative or reflexive) -‐hopefully, not left into the sole hands of the market.
Also like law, anthropology concerns itself with social variability: difference and change, people and resources –writ large: power, techniques, skills, desires, beliefs, attitudes, values or to retake Sen’s phrasing, “capabilities” (Sen 2008). In such post-‐materialist instances of changing political ecology and “flat” ontologies engaging multifarious socio-‐natural worlds (Escobar), it might be worthwhile to re-‐territorialize the notion of capabilities. In the Atacameño case, this means having to defend sustainable hydraulic cultures while avoiding the pitfalls of cultural commoditization around disputes where the ‘lite culture’ of law and mining property supplants ‘natural’ water and lithium justice at the price of ecocide, or “low-‐intensity” genocide. Related water divides hinge the socio-‐natural differentiations that in turn (de-‐ and re-‐) fetichize the rationalist nature/culture dichotomy at the root of unequal access to justice (like water) in the Desert. Again, I have tried to argue that the idea of justice, in this context, is the fetish possibility of territorial commensurability.
Bibliography
Coombe, R and N. Aylwin (2011) Bordering Diversity and desire: Using intellectual property to mark place-‐based products. Environment and Planning 43, 2027-‐2042
Escobar 2011
Yannakakis 2012 Introduction: How Did They Talk to One Another? Language Use and Communication in Multilingual New Spain in Ethnohistory (2012) 59(4): 667-674
