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Abstract
International Indigenous rights laws require governments to obtain the free and fully informed consent of Indigenous peoples prior to the approval of a proposed law or project that could affect Indigenous lives or lands— a concept known as Free, Prior, and Informed Consent (FPIC). Yet, many nations have either failed to implement FPIC or have adopted weakened variations like “prior consultation” that grant greater authority to the state. This can have dire consequences. Since Indigenous lands are often targeted for resource extraction, a failure to respect Indigenous autonomy can exacerbate displacement, increase exposure to contaminants, and fuel social conflict. In this dissertation, I use theory of translation as an analytical framework to examine how FPIC gets strategically transformed from the international legal sphere to differing socio-political contexts. First, I evaluate the implementation of FPIC in Latin America by identifying a set of international FPIC standards and comparing these standards to national laws and practice in 14 countries. FPIC remains severely under-implemented in the region with a wide range in policy forms that often fail to meet international norms. Yet Indigenous movements across the region leverage the FPIC concept to enable new discursive and institutional spaces for Indigenous rights even while they critique FPIC for its limitations. Next, I use ethnographic methods to trace the creation and enactment of Peru’s 2011 Prior Consultation Law to determine how key actors exert their influence within and upon the state to shape the translation of FPIC at the national level. Legal, archival, and interview data demonstrate that the institutionalization of rights enhances the application of the law while simultaneously constricting its scope, creating spaces for Indigenous issues to gain greater representation in high-level government meetings while failing to substantively change resource extraction processes. Finally, a comparative case study of prior consultation practice in four Andean communities affected by mining shows how communities make demands on the state through organized acts of protest and refusal when their right to consent has been eroded. Findings indicate that neoliberalism operates as a contextual constraint to consent, while strong community cohesion is an enabling condition of refusal.