El reconocimiento, aplicación e implicaciones del derecho colectivo a la Consulta prelegislativa en el Ecuador dirigido a los pueblos indígenas, montubios y afroecuatorianos

Abstract

This investigation highlights the recognition, progress and current regulation that Ecuador has on the collective rights of towns, communities, communes and indigenous people, Montubio and Afro-Ecuadorian people, with special emphasis on the prelegislative consultation, a figure that despite being recognized in the 169 Convention, it was only partially included in the 2008 constitution. The study starts from a historical analysis, in order to publicize the most important events for the recognition of collective rights in the country, as well as the dogmatic and descriptive method as it reveals the particularities of the pre-legislative consultation and the entire regulatory framework that exists around it, both nationally and internationally. Having as important results, the fact that although there is progress in the recognition of collective rights with the current Constitution, with respect to the figure of pre-legislative consultation, there is a large gap between what is regulated at the international level and what is observed in the Ecuadorian regulations, since the analysis carried out does not fully comply with the necessary characteristics of the consultation to become a true means of participation of the communities and there is a rather limited vision of the field of action of this institution. Therefore, a regulation that fits to international parameters and considers the true purpose of the consultation is necessary, that is, to guarantee the participation of communes, communities, people and nationalities when dealing with administrative or legislative measures that may affect their rights.