Community Protocols as Tools for Collective Action 197
contradictions and difficulties where international law meets regional, national
and customary laws (Bavikatte, 2014; Jonas et al., 2010; Tobin, 2013).
Bringing these observations together, thinking of collective action choices as
many and varied, and logically chosen in the light of specific political and legal
contexts, can help us to interpret the Kachi Yupi case from the initial complaints
brought by the communities onwards, as well as point to what these choices suggest for community protocols elsewhere. The initial choice to bring complaints
before courts can be interpreted using the legal opportunity approach. After
the legal recognition of communities’ cultural pre-existence and rights in the
Constitutional reform of 1994, communities had for the first time in a long while
a clear source to support their various and broader previous demands in their
quest for recognition. Moreover, the legal element was central not only for the
mobilization of demands and the organization of the communities but as a basis
for any legal complaint. The lack of implementation of environmental standards,
particularly where indigenous consultation and FPIC rights were concerned, in
the context of lithium mining presented itself as a concrete opportunity for the
communities to gain acknowledgement of their claims from a more progressive
court compared to their conservative provincial counterparts. The decision to
bring a case complaining about a lack of proper consultation to the Supreme
Court of Justice thus appears all the more logical as well as a strategic move to
draw attention to broader claims for recognition and rights.
In turn, the decision to draft a community protocol in such a way as to help
move implementation forward
11 appears equally logical following the judgements that underlined the lack of provincial government rules as the reason for
not implementing consultations. In addition, a lull in the immediacy of threats
from mining exploration at the same time afforded the communities the possibility to pursue this lengthier type of action available in the repertoire. The
process of drafting the community protocol following consensus-based decisionmaking can also be understood as an outcome of collective action. The in-depth
discussions and debates about the protocol helped strengthen communities’ ties
to one another in preparation for a time when pressure from outside actors for
their consent would be more present.
The outcomes of the community protocol itself in terms of legal pluralism
can perhaps be more fully explained with reference to the changing political
opportunities described. As mentioned, while the protocol did not lead to formal recognition and legal pluralism, its content, its recognition by the National
Ombudsman, and the initial recognition given by the provincial government, or
the recent acknowledgement in INAI’s resolution, does underline some informal
legal pluralism. To unpack these outcomes, the literature on political opportunity draws particular attention to elections as moments where collective action
can extract promises for change from actors vying for power. Having a new
elected government take office, with a campaign that integrated indigenous
demands, could be argued as an opportunity for a new way forward in the relationships between communities and local authorities – the decision to launch
contradictions and difficulties where international law meets regional, national
and customary laws (Bavikatte, 2014; Jonas et al., 2010; Tobin, 2013).
Bringing these observations together, thinking of collective action choices as
many and varied, and logically chosen in the light of specific political and legal
contexts, can help us to interpret the Kachi Yupi case from the initial complaints
brought by the communities onwards, as well as point to what these choices suggest for community protocols elsewhere. The initial choice to bring complaints
before courts can be interpreted using the legal opportunity approach. After
the legal recognition of communities’ cultural pre-existence and rights in the
Constitutional reform of 1994, communities had for the first time in a long while
a clear source to support their various and broader previous demands in their
quest for recognition. Moreover, the legal element was central not only for the
mobilization of demands and the organization of the communities but as a basis
for any legal complaint. The lack of implementation of environmental standards,
particularly where indigenous consultation and FPIC rights were concerned, in
the context of lithium mining presented itself as a concrete opportunity for the
communities to gain acknowledgement of their claims from a more progressive
court compared to their conservative provincial counterparts. The decision to
bring a case complaining about a lack of proper consultation to the Supreme
Court of Justice thus appears all the more logical as well as a strategic move to
draw attention to broader claims for recognition and rights.
In turn, the decision to draft a community protocol in such a way as to help
move implementation forward
11 appears equally logical following the judgements that underlined the lack of provincial government rules as the reason for
not implementing consultations. In addition, a lull in the immediacy of threats
from mining exploration at the same time afforded the communities the possibility to pursue this lengthier type of action available in the repertoire. The
process of drafting the community protocol following consensus-based decisionmaking can also be understood as an outcome of collective action. The in-depth
discussions and debates about the protocol helped strengthen communities’ ties
to one another in preparation for a time when pressure from outside actors for
their consent would be more present.
The outcomes of the community protocol itself in terms of legal pluralism
can perhaps be more fully explained with reference to the changing political
opportunities described. As mentioned, while the protocol did not lead to formal recognition and legal pluralism, its content, its recognition by the National
Ombudsman, and the initial recognition given by the provincial government, or
the recent acknowledgement in INAI’s resolution, does underline some informal
legal pluralism. To unpack these outcomes, the literature on political opportunity draws particular attention to elections as moments where collective action
can extract promises for change from actors vying for power. Having a new
elected government take office, with a campaign that integrated indigenous
demands, could be argued as an opportunity for a new way forward in the relationships between communities and local authorities – the decision to launch