Reformulating human rights from an indigenous perspectiveembedding the San views on property rights

Resumen

The dominant human rights conceptualisation as reflected in the international human rights corpus has been questioned ever since the drafting of the Universal Declaration of Human Rights. Debates about their foundations, ideological bias as well as on the controversy over universalism and relativism have rendered their content, nature and value problematic. Against that background, this dissertation examines the dominant international human rights grammar from a decolonial perspective and Third World Approaches to International Law (TWAIL). Seeking to expand the mainstream human rights discourse with elements from non-Western-centric epistemologies, the focus is placed on the San indigenous peoples of Southern Africa in order to advance an alternative conceptualisation of the right to property. In order to do so, this thesis explores the epistemological grounds of human rights and the conceptual underpinnings of their normative principles, seeking to substantiate the claim that human rights are Western centric; the embodiment of a secular, rational and anthropocentric worldview. The need for an alternative human rights' formulation is thus examined and justified in order to broaden the dominant hegemonic human rights conceptualisation from an indigenous perspective. Property paradigms and land conceptualisations under Western legal regimes and the San world-views are consequently analysed. Aiming at deconstructing ongoing epistemic asymmetries and coloniality in the legal domain, the conceptual basis for a concrete proposal stemming from the collective ethos of the San and their understanding of land and property is presented. An alternative to the conceptualisation of the liberal right to property is therefore advanced on the basis of aspects such as communality, mutual dependence and obligations, egalitarianism, sharing, redistribution, reciprocity and earth's boundaries. It is based on these premises that property, ownership and uses of land could be reformulated beyond their economic significance and materiality, laying down the foundations for a different understanding of property that could transform and enrich the hegemonic human rights' discourse with an alternative conceptualisation of such a right.