La consulta previa, libre e informada en proyectos hidrocarburíferos: una propuesta jurídica para su eficiencia normativa

Abstract

This thesis considers free, prior, and informed consultation (FPIC) as a fundamental collective right of Indigenous peoples in Ecuador, particularly when their lands, cultures, and traditions face direct and indirect impacts from hydrocarbon projects. The research focuses on Ecuador’s constitutional framework, international human rights instruments, and InterAmerican Court jurisprudence, arguing that although the 2008 Constitution enshrines this right, in practice FPIC has been applied incorrectly, belatedly, or merely as a formality. Based on key case studies such as Sarayaku, Saramaka, and Yakye Axa, the analysis finds that the Ecuadorian State maintains a significant gap between its regulatory framework and the full implementation of consultation standards. The study recommends the repeal of Executive Decree No. 1247, given its lack of normative hierarchy and its reduction of FPIC to an administrative procedure within extractive processes. Instead, we propose a legal reform establishing an Organic Law to govern FPIC with binding, intercultural, and rights-protective effect, drawing strongly on international standards such as free, prior, and informed consent for high-impact projects. This proposal aims to strengthen Indigenous peoples’ self-determination and advance the practical realization of the plurinational State.