FPIC, international law, social space, and indigenous territories in FPIC 
during extractive projects in Latin America. 
A romantic or tragic story? 

CLPI, derecho internacional, espacio social y territorios indígenas en CLPI durante proyectos 
extractivos en América Latina. 
¿Una historia romántica o trágica? 

CLPI, mamallaktapura kamachinakuymi kan. Imasha CLPI kashka runallakta ukupi, shinallatak, 
runa kawsaykunapa kuskakunapi, allpata utuhunkapak hatun ruraykuna Abya Yalaman 
yaykumushkakpi. 
¿Kushilla wiñaykawsaychu kanka mana kashpaka llakillachu kanka? 


Michel André Lapierre Robles 
miclapierre@gmail.com 
ORCID: 0000-0002-8621-0310 
Investigador programa bosques y cambio climático, COMFOR-SUDOE; 
Universidad de Valladolid (Valladolid-España) 

Aguasantas Macías Marín 
aguasantasm@gmail.com 
ORCID: 0000-0003-1281-6333 
Confederación Española de Personas con Discapacidad Física y Orgánica (Madrid-España) 

Cita recomendada: 

Macías Marín A. y Lapierre Robles M.A. (2021), 
social y historia CLPI, derecho internacional, espacio 
territorios indígenas en CLPI durante proyectos 
extractivos en América Latina. ¿Una 
romántica o trágica?. Revista Sarance, (48), 33-51 
DOI: 10.51306/ioasarance.048.02 

........................................................................................................................... 

Abstract 

The development and implementation of the free, prior, and informed consent (FPIC) can be 
understood both as a “romantic” and “tragic” story, using a sharp reflection made by Susan Marks 
(2012) regarding Human Rights. Following this idea, this essay intends to analyse the main 
developments of FPIC international human rights in the last three decades (the successful story) and 
the clear and strong limitations of its use in Latin America (the tragic side to it). 

Despite the fact that the romantic narrative tells us about a progressive recognition and protection of 
indigenous rights in international law, especially with instruments such as the ILO Convention 169 
(ILO-C169) and the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), these 
advances have been and are currently deactivated. 

Through the revision of postcolonial literature and an analysis of relevant research in Latin America, 
this essay explains how the supposed progress is clearly limited by imbalances in the history of 
international law itself and in the territorial governance system that is configured in large-scale 
extractive projects, where FPIC is applied or not. In this manner, despite apparently overcoming 
colonial times against indigenous peoples, the permanent structure of neo-colonization of indigenous 
territory prevails for an ever-growing global market. 

Keywords: FPIC; ethnic-environmental conflicts; extractivism; Human Rights. 

........................................................................................................................... 

Resumen 

El desarrollo e implementación del consentimiento libre, previo e informado (CLPI) puede 
entenderse tanto como una historia “romántica” como “trágica”, utilizando una aguda reflexión 
realizada por Susan Marks (2012) en materia de Derechos Humanos. Siguiendo esta idea, 
este ensayo pretende analizar los principales desarrollos del CLPI en derechos humanos 
internacionales en las últimas tres décadas (la historia exitosa) y las claras y fuertes limitaciones 
de su uso en América Latina (su lado trágico). 

A pesar de que la narrativa romántica nos habla de un progresivo reconocimiento y protección 
de los derechos indígenas en el derecho internacional, especialmente con instrumentos como el 
Convenio 169 de la OIT (OIT-C169) y la Declaración de las Naciones Unidas sobre los Derechos 
de los Pueblos Indígenas (DNUDPI), estos avances han sido y son actualmente desactivados. 

A través de la revisión de la literatura postcolonial y del análisis de investigaciones relevantes 
en América Latina, este ensayo explica cómo los supuestos avances se ven claramente limitados 
por desequilibrios en la historia del propio derecho internacional y en el sistema de gobernanza 
territorial que se configura en los proyectos extractivos a gran escala, donde se aplica o no el CLPI. 
De esta manera, a pesar de la aparente superación de los tiempos coloniales contra los pueblos 
indígenas, prevalece la estructura permanente de neocolonización sobre el territorio indígena para 
un mercado global cada vez mayor. 

Palabras clave: CLPI; conflictos étnico-ambientales; extractivismo; Derechos Humanos. 

........................................................................................................................... 

Tukuyshuk 

Consentimiento Libre, Previo e Informado nishpami mishu shimipika riksirin CLPI shimitaka. 
Kayka “kushiyachishkatapash” yarinalla ninmi, shinallatak “llakiyachishkatapash” yarinalla 
ninmi, chaymi allikuta pacha yuyarishpa kay killkayka willachikrin. Chaypami Runakunapak 
Kamachinakuykunata imasha Susan Marks (2012) maskak warmipa yachaykunawan alli 
yuyarikrin. Shinallatak kay killkayka imasha CLPI ñukanchik Runakunapa Kamachinakuykunapi 
kay kimsa chunka watakunapi wiñarishkatami (alli wiñaykawsayta) rikukrinchik, shinallatak 
imasha kay kamachinakuykunallata sinchilla kashka Abya Yalapi ukupi tarpuchinkapakka (llakilla 
wiñaykawsay). 

Wakin mishkilla yuyaykunaka ninmi kay CLPI ashtakata ñukanchik runakunta alliman 
rikushpa, alliman mamallaktapura kamachinakuykunatapash wiñachishka nin, shinallatak chay 
alli ruraymantapash kay 169 OITpa convenio nishka kamachinakuykunapash wiñarishka nin 
shinallatak Naciones Unidaspa Runa Llaktakunapa (DNUDPI), hatun yachaykunapash rurarishka 
nin, shinapash kay kamachinakuykunaka mana ruraypipa kunankaman rikurishkachu kan. 

Colonia kipa killkashkakunapi maskashpa, shinallatak Abya Yalamanta ashtawan hatunlla 
maskaykunata tarishpami kay killkaypika kashna ninchik; kay alli rurarihun nishpa riksishka 
kamachinakuykunaka mana yanapashka kanchu, ashtawankarin ashtaka llakikunatami puntamanta 
wiñaykawsaypi maskakpika rikurin. Kay llakikunaka ashatawan pacha ñukanchik runakunapa 
mamallaktapura kanchinakuykunapimi na alliman apashka rikurishka shinallatak imasha 
mamallaktata apakkuna paykunapa allpata kamanakunapika ashtakata allpata utuhunatalla ari 
nishka kashka. Chaymantaka paykunaka ñawsamanmi rikushka CLPI kamachinakuykunataka. 
Shinami kunanpika yankallami punta colonia kawsaykunata washaman sakishpa rinahunchik 
ninchik, ashtawankarin neocolonización nishka mushuk yuyay runakunata saruna unkuykunami 
wiñarimuhunlla, shinashpa ñukanchik runakunapa allpakunataka ashatawan hatuna ukuman 
shina tikrarichunmi apanahun. 

Sinchilla shimikuna: CLPI; runakunapa allpata kamanamanta llakikuna; allpata utuhuna; 
Runakunapa Kamachinakuy. 

........................................................................................................................... 

Introduction 

The free, prior and informed consent of indigenous communities appeared 
to be one of the most important advances to ensure their decision-making capacity 
regarding what happens in their own territory. At present, the first bidding 
instrument that establishes this right, ILO-C169, has been ratified by 15 Latin 
American countries. However, conflicts around environment and its resources are 
extended and many times violent: the murders of indigenous people associated with 
environmental conflicts are twice as great as those of non-indigenous people, and 
countries such as Colombia, Mexico, Brazil and Honduras are the most dangerous 
in the world for indigenous environmentalists. 

As active co-producing agents of biodiversity-rich ecosystems over 
centuries and even millennia, indigenous peoples live in territories highly coveted 
by companies and the State. In this sense, environmental conflicts tend to involve 
them disproportionately. According to Scheidel et al (2020), although indigenous 
peoples constitute only 5% of the global population, they are involved in 41% of 
environmental conflicts registered in the world. 

To understand this conflictive dynamic, despite advances in national and international 
jurisprudence, we will first analyse the content of FPIC and then understand its 
limitations in international law itself as well as its application in the territories. 

1. FPIC in international human rights law. The romantic view. 

Free, prior, and informed consent (FPIC) has been an outcome of human 
rights development related to indigenous people over the last 35 years (Barelli, 2012; 
Ward, 2011; Aylwin, 2020). This development has been deeply rooted in the right 
to self-determination and the right to own ancestral lands, which are acknowledged 
in diverse foundational aspects of contemporaneous international law such as the 
Charter of United Nations, and which include the principle of equal rights and 
the right to self-determination (Barelli, 2012; de Moerloose, 2020). An essential 
argument is that, considering the unique connections that indigenous peoples have 
with their territories, their very existence depends on the attachment to their lands. 

Although International Environmental Law and the United Nations 
Human Rights Treaty Bodies (UNHRTBs) do not explicitly mention FPIC, they 
have a special interest. Environmental law acknowledges, particularly, the spiritual 
relationship between indigenous people and their lands. In addition, it emphasizes 
the notable contribution of indigenous people in sustainable development, therefore, 
highlighting the need to protect indigenous cultures and lifestyles. In this sense, 
the UNHRTBs have been relevant as a means to develop the links between civil, 
political, social, economic and cultural rights and FPIC, based on identifying some 
threshold for requiring consent, the geographical scope of FPIC and the adoption of 
domestic legislation (Barelli, 2012). In addition, the UNHRTB also ties into FPIC in 
terms of the right to self-determination (de Moerloose, 2020). 

The most crucial instruments in the definition of FPIC are the International 
Labour Organization (ILO) Convention N. 169 (1989) and the United Nations 
Declaration on the Rights of Indigenous People (UNDRIP, 2007). Even though 
the former has been ratified by only 24 countries in the world, it is binding and 
particularly significant in Latin America, where 15 countries have recognised it. 
The UNDRIP has been subscribed by 164 countries, however, it does not have a 
binding character, although it is a permanent reference in national and international 
jurisprudence due to its wide and far-reaching development of FPIC principles.!! 

Both ILO-C169 and UNDRIP fully acknowledge the special relationship 
between indigenous people and their lands and reaffirm their right to own their lands 
and control their economic, social, and cultural development. UNDRIP, especially, 
emphasizes the right to self-determination as the right to freely define their political 
status and development (Art. 3). From this perspective, FPIC must be understood 
as an exercise of self-determination. However, ILO-C169 admits that States may 
retain ownership of sub-surface minerals (ILO-C169, Art. 15) and, consequently, 
UNDRIP establishes that States, “shall consult [...] in order to obtain FPIC” (Art. 32), 
introducing a nuance in the right to consent (Engle, 2011; Barelli, 2012). 

According to these instruments, free, prior, and informed consent is a 
process that must have certain characteristics, as discussed below.! 
“Free” means that the entire process should develop without the arbitrary use of power, namely 
without coercion, manipulation, or intimidation. “Prior” means that the consent 
process must be deployed appropriately before any official permission is granted or 
project activities begin, guaranteeing sufficient time considering customary forms of 
decision-making. The adjective “informed” underlines that indigenous communities 
must obtain all the substantial project information from companies and States. 
Furthermore, information must be accessible to them in their own languages 
and adapted to cultural forms of indigenous understanding. And, in general, the 
whole process must be adapted to traditional and customary forms of political 
organization and representation. International bodies accentuate the balance in 
power relationship, emphasizing the equal access to different sorts of resources 
required to carry out an FPIC process (Ward, 2011; Barelli, 2012).!! 

As a right firmly grounded in the right to self-determination, FPIC is seen 
by these instruments as a realization of this right. That means that it is the indigenous 
comunities themselves that should undertake FPIC from within their own sociopolitical 
structures and symbolic systems of understanding (de Moerloose, 2020; 
Barelli, 2012; Ward, 2011). The “good faith” character of the entire process also 
implies that governments and third parties should adapt to indigenous decisionmaking 
methods.! 

However, the romantic account of progressive crystallization of indigenous 
self-determination finds one of its greatest limitations in the results of FPIC. Instruments 
and courts do not require governments to obtain the consent of communities, mainly, 
arguing that this depends on the specific circumstance. A flexible stance predominates. 
As a result, this opens the door to neo-colonial interpretations. Nearly all countries 
assert that FPIC does not imply an obligation since they have the right to control their 
resources in the collective interest of all their citizens (Barelli, 2012; Bayot, 2019; 
Chaturvedi, 2014; Ward, 2011). Indigenous peoples cannot hold the right to block 
development projects because they might prevent the defeat of poverty within the 
nation (Colchester, 2010). Nevertheless, and at the same time, the very existence of 
indigenous peoples depends on their lands and territories; accordingly, a project that 
jeopardizes their living conditions can threaten their lives.!! 


In the Latin American case, the jurisprudence of the Inter-American Court 
of Human Rights has defined a criterion of consent or consultation through specific 
judicial cases. As Barelli (2012) points out, the Court has generally been inclined to 
interpret FPIC as a consultation process that, in certain cases, such as Saramaka v. 
Suriname, must be via mandatory consent. Here, the Court interprets that the largescale 
investment plans: 

would have a major impact within the Saramaka territory, [thus] the State 
has the duty, not only to consult with the Saramaka, but also to obtain their 
free, informed and prior consent of these, according to their customs and 
traditions. (cited from Orellana, 2008, p. 845) 

Yet, in this interpretation, a question rises about what may be considered 
as a “greater impact” and if this means that a lesser impact does not need consent 
(Herrera, 2019). 

The “consent v. consultation” controversy (Barelli, 2012; Colchester, 2010) 
has expressed the incompatibilities of state sovereignty and the right of indigenous 
peoples to self-determination. The romantic vision of “flexibility” that courts have 
adopted (Barelli, 2012; Herrera, 2019) offers ample room for maneuver for more 
powerful actors such as the State and capital. From this controversy it is possible 
to understand the structural limitations of FPIC, that is, the long-term dynamics in 
international law and the world-system and its territorial expressions in the social 
space. Those structural limitations make consent, and more broadly, the right to 
decide the indigenous peoples’ own ways of life, unfeasible. This tragic account of 
FPIC will be analysed in the following sections. 


2. Western Capitalism, IHRL and limitations of FPIC. A tragic narrative 
worldwide. 

As different postcolonial and critical schools of thinking have remarked, 
modern eurocentric capitalism, active since the emergence of colonialism in the 
16th! century, has produced a global distribution of capital, labour, and resources. 
This distribution follows the patterns of center-periphery dynamics, which, in turn, 
produce geographies of accumulation, extraction, and dispossession (Luxemburg, 
1951; Prebisch, 2012; Frank, 1966; Amin, 1976; Quijano, 2000; Harvey, 2004; 
Composto et al., 2014; Svampa, 2019). Despite the process of decolonization, this 
world-system currently remains in its general patterns of accumulation/dispossession 
between the Global North (center) and the Global South (periphery), but with different 
political, economic, and territorial adjustments. Within this long-term structural 
dynamic, indigenous peoples have occupied a position of exploitation, discrimination, 
extermination, and deterritorialization since the first western colonies.!Even though 
the level of formal discrimination of colonization no longer exists, the rate and scales 
of dispossession are much higher today (Dorninger et al., 2021). 

As Doyle mentions (2014), in addition to occupation and wars, the law was 
a key factor in the colonial project. Colonialist and indigenous people signed many 
treaties and agreements, and consent was at the core of negotiations. The infamous 
Requerimiento!of Spanish colonization, a statement (read in Spanish to the indigenous 
people of the Americas) demanding acceptance of Spanish rule under threats of 
exterminations was aimed at the dispossession of wealth and land. Although there 
were different and sometimes successful resistance movements, the agreement 
conditions for indigenous people were increasingly unfavourable. Colonial law 
attempted to justify, regulate and legalise forms of dispossession directly through 
the explicit discrimination of colonised people. The colonial state and international 
law were designed to facilitate the colonial expansion of the modern world-system.! 

Despite granting sovereignty to the nascent states, the postcolonial state 
of the Global South was built upon the foundations of the colonial state and its 
territorial jurisdiction (utis possidetis), maintaining, or even strengthening economic 
dependence and geo-political dominance (Anghie, 2005; Chimni, 2017). In this 
sense, decolonization in the international law was also an imperial restructuring of 
the center-periphery relationship of capitalism. It produced, in the Global South, 
a neo-colonial (Quijano, 2000; Young, 1994), authoritarian (Cardoso et al, 2002; 
O’Donnell, 1982) and/or developmental (Eslava, 2019; Eslava & Pahuja, 2020) 
State under the specific conditions of “self-determination” that colonial powers 
permitted (Barsalau, 2019). After the decolonising processes (in Latin America at 
the beginning of the 19th century and Africa and Asia more than one century later) 
and under these postcolonial states, war, occupation, discrimination, assimilation, 
and unequal law continued as central features in the relationship between States and 
indigenous people. 

The postcolonial state in the Global South can be called a “developmental 
state” due to its functionality within the new postcolonial world-system (Eslava, 
2019). It means, briefly, a peripheral situation where the influence of transnational 
capital and the Global North’s policy imposes clear margins of action on the 
states and societies of the Global South; a Eurocentric imaginary and practice of 
transformation oriented towards social and economic modernization (“progress” 
and “development”), and the reproduction of a neo-colonial domination system 
within the territorial jurisdictions of the state (also called “internal colonialism” by 
the Mexican academy in the 60’s) (González-Casanova, 2006; Stavenhagen, 1965; 
Kay, 1991). 

Although between the 1950s and 1970s, the “Third world” attempted to 
dispute the development discourse, linking it with “self-determination”, economic 
independence, regulation of transnational capital, fair trade and debt (Bandung 
conference, UNGA Resolution 1960 and the attempts to regulate international trade 
through UNCTAD), this was strongly contested, limited and finally defeated by the 
Global North (Pahuja & Saunders, 2019). Rostow’s ideas that development is rather 
connected to the efforts and capacities of the “underdeveloped countries” themselves 
rather than to the international asymmetries (Pahuja & Saunders, 2019; Chaturvedy, 
2014; Whyte, 2018; Rist, 2008) started to be hegemonic. During the beginning of 
the neoliberal project, the “Third-Worldist” ideas (including dependency theory) 
were politically buried, and the world-system and international law managed to 
adjust even more the developmental state (Pahuja & Saunders, 2019). 

Under neoliberalism, the developmental state of the Global South has 
affirmed its links of dependency (and its loss of power in the face of transnational 
capital, states and multilateral organizations of the Global North) (Kay, 1996), but, 
at the same time, it has incremented its internal “violence monopoly” through the 
control of natural resources and social diversity. In this period, features such as the 
“structural adjustment” (state reduction, tax breaks and free movement of capitals), 
public-private alliances, decentralization, and the ideology of “individual agency” 
(that places the management of risks arising from the contradictions of the model 
on the individual) were new elements of the development state (Eslava & Pahuja, 
2020). 

Against this backdrop of power, the Latin American indigenous 
peoples have been situated in a quite feeble position. As in the colonial past, the 
decolonization period does not represent a change of position, but rather their 
continued subjugation under the sovereignty of the developmental state and global 
capital (Bengoa, 2000). In Latin America, between 1860 and 1880, Argentina and 
Chile undertook a military campaign against the Mapuche “Wallmapu” (Bengoa, 
1996). In the Argentinian case, one of the most important causes was the payment of 
the British debt contracted by the government in the Independence War. Similarly, 
the Mexican government fought and reduced the Yaquis on its northern border and 
in the “Mayab” territory on the Yucatan peninsula (Reed, 2007). The extermination 
of indigenous peoples during the rubber boom and the beginnings of oil exploitation 
in the Amazon (Bunker, 1984; Franco, 2013), the Guatemalan genocide of Mayans 
between the 1960s and 1980s (Roht-Arriaza, 2006; Sanford, 2004) or the current 
systematic murder of indigenous and Afro-descendant leaders during the Colombian 
conflict (Ávila, 2020), are also extreme, but not rare, examples of this regime 
against indigenous people. The growing wave of criminalization of indigenous 
organizations and leaders resisting extractive projects follows the same foundation 
(Svampa, 2019; Raftopoulos, 2017). Therefore, despite the “romantic” development 
of indigenous rights in international law, the developmental state that emerged from 
the postcolonial World-System (and its international law), has ruthlessly exercised 
its full right to take control of “its” territory at any cost. 

A key concept to build the primacy of the state in the international and 
national law is sovereignty (Parfith, 2017; Bayot, 2019). According to Anghie (2005), 
sovereignty emerged from the exclusionary perspective of modern imperialism, 
where only “civilized” (European) societies could hold sovereignty. The sovereignty 
doctrine provides “certain cultures with all the powers of sovereignty while 
excluding others” as the Weberian concept of “monopoly on violence” describes. 
In the postcolonial stage, the developmental state reproduces this “dynamic of 
difference” internally: the “savage” needs to be tutored and incorporated in a rational 
political order. The neglecting of self-determination was called “Fourth World” by 
the Shuswap Chief George Manuel: “The Fourth World perspective reveals how 
the state sovereignty doctrine […] has created a power imbalance between states 
and indigenous peoples” (Bayot, 2019, p. 283). In the consent v. consultation 
controversy, states widely interpret the right of self-determination of indigenous 
people as subordinated to state sovereignty. This is one of the most powerful legal 
instruments that allow the World-System and the development state to avoid the 
right to FPIC. 

Another important legal element of this type of “symbolic power” (Bourdieu, 
1991) to limit FPIC has been the “right to development” (Chaturvedy, 2014). Due to 
its original content being disputed and then deactivated in its most critical forms1, 
the right to development is multiple, ambiguous, and abstract, embracing different 
aspects, which can be contradictory among them (Ibid). The right to development 
has different rightsholders (State, individuals and collectives), and their different 
qualities and relationships are not clear. In addition, FPIC has been seen as an 
element of participation within the right to development (African Commission) and 
OIT C-169 puts the two rights at par and complementary. The World Bank has 
expressly argued that the “self-determination” interpretation of FPIC contravenes 
the right to development (Chaturvedy, 2014). This multiplicity opens the door for 
the global capital and the developmental states to emphasize the interpretations 
most favourable to their interests, that is, prioritizing the sovereign content of the 
right to development and imposing it on others. !According to this, indigenous selfdetermination 
cannot impose obligations on the state, “derogate” its sovereignty 
and prevent the development of all the citizenry. This hierarchy seriously limits the 
principle of self-determination of indigenous peoples.!! 


There are many examples where, for “national interest”, “development”, 
and in use of its legitimate sovereignty, the State ends up imposing extractive projects 
despite local resistance and self-determination (Anderson, 2012; Chaturvedy, 2014; 
Bayot, 2019; Svampa, 2019). Furthermore, according to Baker (2012) and de 
Moerloose (2020), this degradation in the indigenous self-determination principle in 
FPIC is related to the proliferation of a “negotiated approach” of FPIC, typical of the 
language of Corporate Social Responsibility (CSR). This narrative, adopted by the 
World Bank Group and other stakeholders of international development (Equator 
principles), see FPIC as a process of negotiation and necessary agreement, mutually 
built and based on principles of participation and representation agreed upon by 
borrowers (States and companies) and indigenous peoples. Therefore, there is not a 
simple consent because the principles of development must be agreed between all 
participants under the right to participation within the development framework.! 

_________

1. Peter Uvin describes the history of the right to development as follows: “It was the kind of rhetorical 
victory that diplomats cherish: the Third World got its Right to Development, while the First World ensured 
that the right could never be interpreted as more of a priority than civil and political rights, that it was 
totally non-binding, and that it carried no resource transfer obligations” (cited by Chaturvedy, 2014: 41-2). 
_________

As can be seen, both the historical power relations reflected in the 
postcolonial global legal order, and the emerging principles of sovereignty and 
development have managed to deactivate the principle of self-determination, slowing 
down the emancipatory potential of FPIC. Therefore, can FPIC be considered as 
an emancipatory element (romantic narrative) or simple lure (tragic narrative) of a 
more restrictive international order? Considering the advocacy work of international 
indigenous organizations, which viewed human rights with suspicion since the 60s, the 
evolution of FPIC is an emancipatory element within the relative autonomy of the field 
of power of international law, although rapidly countered by that same field of power 
and the influence of actors committed to global capitalist development. However, it 
is necessary to understand some elements about how FPIC is implemented in the 
territories to understand, ultimately, its more crucial function.! 


3. FPIC and indigenous communities in the social space. A tragic territorial 
account. 

In the reign of the territorial realpolitik, any vestige of FPIC selfdetermination 
disappears. The position of FPIC and the indigenous people within 
the World-System, in a Global South that has dramatically multiplied the extraction 
of materials and energy in the last decades (Martínez-Allier et al., 2010; Dorninger 
et al., 2021), is highly fragile. Using a Bourdieusien expression (Bourdieu, 1998), 
Rodríguez-Garavito (2011) situates FPIC in a “social space” and a “field of power”, 
highlighting the extreme imbalance of power between extractive projects and 
indigenous communities. Considering the centre-periphery relationship which 
structurates an extractive economy in the Global South, the capacity of the 
developmental state to deterrence international standards of FPIC and to use the 
“monopoly on violence” to impose extractive projects, the extraordinary amount 
of economic and political capital of companies and international financing 
organizations, the private violence of organised crime (Lapierre & Macías, 2018; 
Rodríguez et al., 2017), and the extreme poverty and low mobilization capacity of 
many indigenous communities, among other factors, it is possible to understand 
the difficulties to impose a meaning of self-determination in the territorial FPIC 
“minefield” (Rodríguez-Garavito, 2011). 

In this regard, it is interesting to analyse the findings of Torres-Wong, 2018 
and Zaremberg & Wong, 2018 in Latin America, who have made an evaluation of 
the FPIC processes registered until 20172, making a typology of scenarios and action 
patterns of indigenous communities. This sheds light to understand, in a more 
complex way, the position of indigenous communities in the social space. 

The first type of scenario is a “medium public order, no extraction, and 
no pecuniary benefits for indigenous people”, characterised by highly mobilized 
“anti-extractive communities” (Zaremberg & Wong, 2018, p. 36), which oppose 
extractive projects. In this scenario, there are sporadic episodes of violence from 
the communities and State, but the latter steps back and the project is cancelled. 
There are two additional characteristics of this type: there are very few cases and 
communities achieve to be united under the same political decision. Furthermore, in 
this scenario, FPIC was not used, demonstrating that FPIC is not the most effective 
tool to crystallize a possible right to veto. 

The second scenario describes a “low public order, no extraction and 
no pecuniary benefits for indigenous people” (Ibid., p. 36). In this case, there are 
strongly mobilized indigenous communities in favour of extraction, but state denial 
of FPIC and both the community and the State are unable to negotiate. States tend 
to repress and criminalize social mobilization; the conflict scales and the project is 
suspended after deaths and multiple riots. 

The third, more common scenario, depicts a “high public order, extraction, 
and no pecuniary benefits for Indigenous People” (Ibid., p. 37) and typically 
occurs when indigenous groups are demobilised. Communities have weak skills to 
negotiate better conditions and end up taking the fixed formulas of consultation and 
environmental management that States and companies propose. This has occurred 
mainly in the Amazon basin where the isolation of small communities, the material 
poverty, the lack of links with national organizations, and skills not adapted to 
coping with extractive disruptions, put them in an extremely marginalised and weak 
position to negotiate. A self-determination process is unthinkable. 

In the fourth scenario, indigenous communities have a better position, 
high mobilization, and the possibility of reaching more positive benefits. There is 
a “Medium public order, extraction and pecuniary benefits for indigenous people” 
(Ibid., p. 39). Here, local organizations constantly pressure the State and conflict 
does not scale in violence. The difference with the previous scenario can be found 
in the existence of strong organizations, with expert leaders – which makes them 
improve their position in the field of power – solid alliances, and sufficient resources 
to ensure a certain autonomy of mobilization. 

_________

2.The analysis includes 177 cases in three countries such as Bolivia, Mexico, and Peru where FPIC was 
implemented or not, although Bolivia is overrepresented with 87% of the total cases. 
_________


Finally, the worse scenario is when the State does not implement FPIC, 
there is a medium-level mobilization capacity, but internal divisions are significant, 
and violence increases while the project continues. This case is characterised by 
a “low public order, extraction and no pecuniary benefits for Indigenous People” 
(Ibid., p. 40). In some cases, violence includes systematic private violence (Lapierre 
& Macías, 2018). 

As we can see, although the position of indigenous people is overall diverse, 
it is extremely fragile. Some strong communities can challenge the dominant position 
of extractive projects or negotiate historically denied pecuniary benefits, but such 
scenarios are not the general norm. The weak position does not mean an a priori 
“anti-extractive” position. Rather, many times, the difficult economic situation, the 
deterioration of the territory (previous processes of peasant and capital colonization, 
deforestation, and other disruptions), pressures, and a very marginal position (such 
as the dispersed Amazonian indigenous communities) push them to support and 
not to oppose to extractive projects, even knowing the potential impacts. A legitimate 
attachment to the development speech may also exist. In the social space, FPIC has 
not worked as a consent tool or as an expression of self-determination. FPIC has 
been deployed only in the third and the fourth type of conflict, oscillating between a 
checklist (as in the case of demobilized communities) and a negotiation process (as 
in communities which achieve pecuniary benefits). According to Zaremberg & Wong, 
(2018) FPIC has never implied a right to veto in the analysed cases, not even in the 
Bolivian case where national norms formally allow it. On the contrary, communities 
that achieve the halt of a project never used FPIC. Although some scholars have found 
cases in Latin America where FPIC has been a dynamizing factor of mobilization 
(Walter & Urkidi, 2017), and even a most effective way to delay projects than 
environmental law (Vela et al., 2020), others emphasize the depoliticizing component 
of FPIC (Urteaga, 2018; Dunlap, 2018; Ramírez, 2019).!!!! 


Conclusions 

Despite the advances of international human rights law on indigenous 
rights such as self-determination and FPIC, this achievement (highlighted by the 
romantic narrative) has been tragically deactivated by the international law and 
the social space. On the one hand, the postcolonial order, the developmental state, 
the sovereignty principle, and the right to development have visibly subordinated 
FPIC under their logics. On the other, FPIC has served to “rationalize” negotiations 
on compensations and to bureaucratically ritualize an FPIC simulacrum through 
checklist processes. In this manner, the permanent structure of neo-colonization over 
indigenous territory for an ever-growing global market prevails. In the long term, 
what is the role of international human rights law? Looking at current outcomes 
of FPIC in the field, without doubt FPIC has facilitated and institutionalised the 
negotiation process to assure the juridical security for the extractive investment, 
although, many times the authoritarian temptations of the development state seek a 
quick, violent, and low-cost imposition. 

Considering the day-to-day social struggle, and some rare positive experience 
with FPIC in indigenous communities who seek to cancel extractive projects (Walter 
& Urkidi, 2017), the strengthening of territorial movements is more important than 
FPIC policy in itself, but, of course, it can entail the tactic use of FPIC in a specific case. 
In this sense, international human rights law (and FPIC) has a precise potential for 
resistance (Marks, 2012) that, however, should not be understood as an objective of 
emancipation in itself. Using the words of Knox “in a short-term, conjunctural, tactical 
sense it is necessary to work within it” (2016, p. 325).!!! 


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