Indigenous Rights in Mexico Today: Judicial Interpretation of Prior Consultation

• In Event: Poster Session: Comparative Politics in Developing Countries & Foreign Policy
  In Poster Session: Poster Session: Comparative Politics in Developing Countries

Abstract

The establishment of the rights, laws, and customs of indigenous peoples on equal footing with that of the state system, known as the “politics of recognition,” emerged globally in the 1980s and has been formally articulated in various international treaties and declarations. One of the key aspects of this new framework has been the concept of prior consultation (consulta previa) which stipulates that indigenous peoples identify their development priorities, participate in the drafting of policies that affect their communities, and through their self-established procedures, vote on these policies. In Latin America, prior consultation (PC) has been written into national constitutions in the last twenty years, appearing to redefine the balance of power between governments and traditional peoples. Yet, in practice, interpretations of PC have varied widely, ranging from a bold, indigenous-centered approach of “free, prior, and informed consent” to a weak (and often executive-preferred) understanding that the goal is “dialogue” and that the government may proceed even if communities vote against government proposals. This project examines judicial decision-making in Mexico in recent lawsuits in which indigenous communities have challenged the Mexican president’s mega-infrastructure project, the Tren Maya, and seeks to shed light on the conditions under which courts are willing to challenge powerful presidents, uphold PC, and protect the rights of indigenous peoples.

Author

• Jodi S. Finkel, Loyola Marymount University