Collective Rights and Investments: Legal Effects of Prior Consultation in Ecuador

Abstract

This study analyzes the legal and practical consequences arising from the exercise of the right to prior, free, and informed consultation in Ecuador, specifically when there is opposition from the consulted parties in the context of extractive projects. The objective was determined to explain the legal and practical consequences arising from the exercise of the right to prior, free, and informed consultation, specifically when there is opposition from the consulted parties. The research, of a dogmatic-legal type with a qualitative approach, examines the constitutional and international regulatory framework, the jurisprudence of the Constitutional Court of Ecuador and the Inter-American Court of Human Rights, as well as the analysis of emblematic cases, with special emphasis on the Loma Larga Mining Project. The results show that, despite the constitutional recognition of prior consultation as a collective right, the absence of a regulating organic law, the confusion between socialization processes and genuine consultation, and the lack of clarity regarding the binding nature of consent generate conflicts that go beyond the legal sphere. It is concluded that, in the face of social opposition, the viability of projects depends not only on state management but also on obtaining a social license through the active co-responsibility of the investor, integrating safeguard clauses to protect public assets against potential international arbitration.