Institutional conversion from below : free, prior, and informed consultation in Latin America

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2021-08-03

Authors

Sandoval, Nathalia (Sandoval Rojas)

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Abstract

Under what conditions can indigenous peoples advance their interests by engaging with institutions that promised political incorporation and failed to deliver? This study analyzes the right to free, prior, and informed consultation (FPIC), which requires engaging indigenous peoples in good-faith processes with the goal of obtaining their consent before launching development projects on their lands. The literature paints a bitter picture of FPIC’s record in the Latin American countries that adopted it since the 1990s. According to scholars examining implementation of the institution, participation in FPIC processes may at best be irrelevant, and at worst actively reproduce domination. In contrast to previous studies, I shift away from studying FPIC enforcement to the struggles to define the institution. I show that when institutions such as FPIC—or aspects of them—are ambiguous, indigenous groups gain the political opportunity to redirect the institution’s goals, actors, and scope to align the institution’s functioning more closely with its stated goals. When this ambiguity can be exploited in varied and favorable venues, and indigenous groups can credibly signal disruptive contentious strategies, institutional shifts that expand participation, or at least loosen existing constraints, can be achieved, even in regimes characterized by historical exclusion and inequality. I call this process of gradual institutional change conversion from below. I develop the argument through a comparison of six processes of FPIC change in Colombia and Bolivia. The dependent variable of interest is the direction and extent of changes in FPIC achieved by indigenous peoples. To test rival hypotheses and generate alternative theoretical propositions, I draw on interviews, extensive research of administrative records, newspaper archives, and legal filings. My findings extend our understanding of gradual endogenous institutional change. I detail how conversion happens, and I provide an innovative explanation of different magnitudes of change, including an explanation of lack of change. I challenge our understanding of the perils of ambiguous institutions, and provide a theory that explains how marginalized peoples are increasingly wielding those institutions to contest policies in the region.

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