200 Pía Marchegiani and Louisa Parks
In a broader view, these reflections on how the Kachi Yupi community p rotocol
unfolded and took its place in a longer chain of collective action suggest some
ideas. First, it suggests some scope conditions that might be needed for community protocols to effectively translate into formal legal pluralism. These are mainly
political. The case suggests that a community protocol is pitted against pre-existing
and dominant discourses of commitment to an agenda that clashes with its aims,
legal pluralism will be harder to achieve. The commitment to lithium, and its construction as a key part of moving away from fossil-fuelled economies, forms such a
dominant discourse in this case, and dominant discourses have been argued to be
particularly difficult to challenge where economically valuable resources are concerned (Nelson, 2010). It also suggests that both subnational and national politics
need to be aligned in favour of legal pluralism, or at least one of these levels needs
to be so. The only pressure from the national level in this case came from the independent office of the National Ombudsman, while the provincial and federal governments were politically aligned and saw no need to engage in cooperation with
the communities. When the provincial government engaged in dialogue, it could
not (or would not) commit to it in a real sense. These political scope conditions
would seem helpful, if not crucial, for the success of legal pluralism (in addition
to a conducive legal context of course). Second, the case is helpful for understanding community protocols both as tools in action repertoires and as bases for
building on those repertoires. Community protocols may not be the only actions
that communities undertake. By considering them as one action in a longer-term
view, their drawbacks and any failures to achieve their aims appear in perspective.
But they are also very peculiar types of collective action: the processes that are
undertaken to draft protocols can strengthen communities’ action repertoires by
bolstering their standing as collective actors. In other words, community protocols
can help build communities that are better placed to act together in a wider range
of ways and with a better understanding of the legal and political contexts they are
in, and of the claims they hold most dear.
Notes
1 The authors thank community members for the fruitful exchanges that drive the
reflections of this contribution. *All URLs retrieved on 1 September 2021.
2 Convention Concerning Indigenous and Tribal Peoples in Independent Countries
(ILO No. 169) (1989).
3 Communities in the area have been recognized by Argentinean law as indigenous
communities and hold legal status as such.
4 National Constitution of Argentina, rev. 1994 (Constitución de la Nacion Argentina,
Boletín Oficial [BO], Jan, 3, 1995), Art. 41:
All inhabitants are entitled to the right to a healthy and balanced environment
fit for human development in order that productive activities shall meet present
needs without endangering those of future generations; and shall have the duty
to preserve it […].
English translation from http://www.biblioteca.jus.gov.ar/Argentina-Constitution.
pdf, accessed 18 June 2021.
In a broader view, these reflections on how the Kachi Yupi community p rotocol
unfolded and took its place in a longer chain of collective action suggest some
ideas. First, it suggests some scope conditions that might be needed for community protocols to effectively translate into formal legal pluralism. These are mainly
political. The case suggests that a community protocol is pitted against pre-existing
and dominant discourses of commitment to an agenda that clashes with its aims,
legal pluralism will be harder to achieve. The commitment to lithium, and its construction as a key part of moving away from fossil-fuelled economies, forms such a
dominant discourse in this case, and dominant discourses have been argued to be
particularly difficult to challenge where economically valuable resources are concerned (Nelson, 2010). It also suggests that both subnational and national politics
need to be aligned in favour of legal pluralism, or at least one of these levels needs
to be so. The only pressure from the national level in this case came from the independent office of the National Ombudsman, while the provincial and federal governments were politically aligned and saw no need to engage in cooperation with
the communities. When the provincial government engaged in dialogue, it could
not (or would not) commit to it in a real sense. These political scope conditions
would seem helpful, if not crucial, for the success of legal pluralism (in addition
to a conducive legal context of course). Second, the case is helpful for understanding community protocols both as tools in action repertoires and as bases for
building on those repertoires. Community protocols may not be the only actions
that communities undertake. By considering them as one action in a longer-term
view, their drawbacks and any failures to achieve their aims appear in perspective.
But they are also very peculiar types of collective action: the processes that are
undertaken to draft protocols can strengthen communities’ action repertoires by
bolstering their standing as collective actors. In other words, community protocols
can help build communities that are better placed to act together in a wider range
of ways and with a better understanding of the legal and political contexts they are
in, and of the claims they hold most dear.
Notes
1 The authors thank community members for the fruitful exchanges that drive the
reflections of this contribution. *All URLs retrieved on 1 September 2021.
2 Convention Concerning Indigenous and Tribal Peoples in Independent Countries
(ILO No. 169) (1989).
3 Communities in the area have been recognized by Argentinean law as indigenous
communities and hold legal status as such.
4 National Constitution of Argentina, rev. 1994 (Constitución de la Nacion Argentina,
Boletín Oficial [BO], Jan, 3, 1995), Art. 41:
All inhabitants are entitled to the right to a healthy and balanced environment
fit for human development in order that productive activities shall meet present
needs without endangering those of future generations; and shall have the duty
to preserve it […].
English translation from http://www.biblioteca.jus.gov.ar/Argentina-Constitution.
pdf, accessed 18 June 2021.