SOCIAL MOVEMENTS AS SOURCE OF CONSTITUTIONAL LAW: THE CASE OF THE INDIGENOUS MOVEMENT IN PLURINATIONAL STATE OF ECUADOR A Dissertation Presented to the Faculty of the Graduate School of Cornell University in Partial Fulfillment of the Requirements for the Degree of Doctor of the Science of Law by David Alberto Cordero Heredia December 2018 © 2018 David Alberto Cordero Heredia SOCIAL MOVEMENTS AS SOURCE OF CONSTITUTIONAL LAW: THE CASE OF THE INDIGENOUS MOVEMENT IN PLURINATIONAL STATE OF ECUADOR David Alberto Cordero Heredia, J.S.D. Cornell University 2018 ABSTRACT In 2008, a new Constitution of Ecuador was enacted with a novel definition of the state as “plurinational.” The plurinational state is a concept created and widely discussed inside the CONAIE (the most prominent indigenous peoples social movement); one of the most successful social movement in Latin America in conventional and contentious politics. This dissertation is a demosprudential study of the plurinational state for it underlines how the modern Ecuadorian indigenous social movements were sources of the Constitution and the law. This dissertation tries to answer why one of the most successful social movement in Latin America (regarding legal reform) has not achieved significant effectiveness in the implementation of their interpretations of the law? To achieve that goal, the first part will show how autonomy and self-determination has been the interpretation of justice if indigenous peoples in Ecuador since the clash with the Spaniards colonizers, how that interpretation took the form of the idea of the plurinational state, and the way that that concept followed from the movement to the text of the Constitution. The second part will show the contesting interpretations of the Plurinational State from the State’s branches, ii and how mestizo politicians and authorities’ narrative is setting back the transit of the concept to the idea of the law and the Constitution. Four relevant variables intervene in the formation of such idea: ethno-racial policy, reception of the international law, social movements activity, and legal system. The study of the decade in which Rafael Correa was President of the Republic (2007-2017) shows how the variables manifested in cases regarding prior consultation, indigenous law and the protection of the indigenous peoples living in voluntary isolation (Tagaeri and Taromenane). After the analysis of the Ecuadorian case and the relevant literature on the matter, the study shows that there is an idea of what is the law (of what is the Constitution) that excludes the collective rights of the indigenous peoples and their interpretations of the law that is holding the legal changes to become social changes. iii BIOGRAPHICAL SKETCH David A. Cordero-Heredia was born in Quito, Ecuador. David joined the Cornell Law School J.S.D. program in 2014 with the Cornell Law School Graduate Fellowship. Prior to his admission, he graduated from the Cornell Law School LL.M. program. He also holds an LL.B. from the Pontifical Catholic University of Ecuador (PUCE), and an M.A. in Constitutional Law from the Universidad Andina Simón Bolívar (UASB), Ecuador. After completion of his studies, he worked for the Ecumenical Human Rights Commission (CEDHU), the Ecological Defense of the Intag Valley (DECOIN) and the Regional Foundation on Human Rights Advisory (INREDH). He was served as a member of the board of directors of the Ecuadorian Coordinator of NGO's for Defense of Nature and the Environment (CEDENMA), the Inter- American Human Rights Moot Court Competition Participant Association, the PUCE Law School, and the INREDH (Chairman in 2011). He has been a petitioner on several cases in the Inter-American Human Rights Commission and two in the Inter-American Court of Human Rights. His primary academic and advocate interests are Indigenous People's Rights, Constitutional Law, International Human Rights Law, and Social Movements and the Law In 2010, he was tenured as Assistant Professor and Coordinator of the Human Rights Center of the PUCE. Currently, he is an Associate Professor in leave of absence of the PUCE. At Cornell University, David Cordero-Heredia was Fulbright Fellow, Graduate Fellow of the Latin American Studies Program, and Teaching Fellow on the Human Rights Clinic: Policy Advocacy. iv For the co-author of the greatest works of my life, including this dissertation, Ana C. Navas, thank you for believing in me, especially when I do not. For my beloved Supay Antonio and Yaku Julia that always give the straight to keep dreaming in a better world for them. For Albita, thanks for so much love, you should have been here. v ACKNOWLEDGEMENTS This project took form in the discussions about law and social movements with Professor Gerald Torres who kindly accepted to be the chair of my committee. His guidance and his work were vital for me to start thinking outside the box of traditional law literature. Professor Mitchel Lasser was an enormous intellectual, methodological, theoretical and moral support, he had the patience of reading and discuse this project with me from the first proposal. Professors Aziz Rana, Muna Ndulo y Kenneth Roberts provided intellectual inspiration and challenging comments. All the five members of my committee contributed from a different and interesting angle on the discussion of indigenous movement, law, and social change. I could not have had in better hands. My wife Ana Cecilia Navas gave me support in all the possible aspects of this dissertation, she was a harsh critic and a daily supporter, proofreader, translator, researcher, and more. Jaime David Ortiz introduced me in the use of topic modeling, he is the author of the code that was used to analyze the constitutional assembly acts and the text of the constitutions opening my research to a new universe of possibilities. In early stages of the project, the discussions and advice of professor Sidney Tarrow and José Tomás Sánchez at Cornell, Ramiro Ávila and Felipe Castro at UASB, Mario Melo and Efrén Guerrero at PUCE, and, Carolina Silva Portero at Havard Law School were inspirational and useful to define the scope of the study. vi Pieces of the final documents were discussed in the Second Conference of the Stanford Program in Law and Society (SPLS) at Stanford Law School (2015), 12th Annual Inter-University Graduate Conference at Cornell Law School (2016), the joint faculty workshop of the PUCE and the San Francisco de Quito University (2016), the Cornell Latin American Conference (2016), and the First Conference on Law and Society at UASB (2016), and the Conference on Dialogues of Northen and Southen Constitutionalism organized by UASB, Los Andes University, and Yale Law School (2017). I found marvelous people in Cornell that were massive support of my studies, notably Dean Laura Spitz and Professor Sital Kalantry, none of this could be possible without your confidence. This work would have been impossible without the economic support of Cornell Law and PUCE. Paula Cordero, Jefferson Macias, Diana Carrión, Juan Francisco Cárdenas, Víctor Samaniego Rivera, Jefferson Macías Quisaguano, Antonella Cifuentes, Niki Sánchez, Sebastián Páliz, Diego Borja, Carlos Carrillo, Cristina Melo, Ignacio Monge, María Judith Valencia, Luís Enriquez y Nathaly Vargas provide research assistantship for navigating in the interminable hours of video and the extense pages of press, I am deeply grateful for your assistance. vii TABLE OF CONTENTS BIOGRAPHICAL SKETCH .............................................................................. iv DEDICATION ................................................................................................... v ACKNOWLEDGEMENTS ................................................................................ vi TABLE OF CONTENTS ................................................................................. viii LIST OF TABLES ........................................................................................... xiii LIST OF FIGURES ......................................................................................... xiv 1. INTRODUCTION .......................................................................................... 1 1.1. Social Movements Achieving Legal Change .......................................... 5 1.2. Legal Change is not Social Change ....................................................... 7 2. THE HYPOTHESIS .................................................................................... 18 2.1. The problem ......................................................................................... 24 2.2. A four-prong approach ......................................................................... 30 2.2.1. Social movements ......................................................................... 34 2.2.2. Ethno-racial policy ......................................................................... 42 2.2.3. Legal systems ............................................................................... 45 2.2.4. Reception of the International law ................................................. 48 2.3. The data ............................................................................................... 52 FIRST PART – SOCIAL MOVEMENTS ACHIEVING LEGAL CHANGE ........ 56 viii 3. THE PATH OF THE PLURINATIONAL STATE: A SOCIAL MOVEMENTS IDEA THAT FORMALLY REINVENTED THE STATE .................................... 57 3.1. The conquerors’ arrival and legal status of the indigenous population in the Spanish-America..................................................................................