Institutional Overlaps, States, and Transnational Private Actors: The Case of the Regime Complex for the Protection of Indigenous Peoples’ Rights.

Under what conditions do institutional overlaps and regime complexity facilitate or undermine the underlying goals of cooperation? I address this question by focusing on the case of the regime complex for the protection of indigenous peoples’ rights (IPRs). Centered around the 1989 ILO Convention on Indigenous and Tribal Peoples’ Communities No. 169 (C169), the indigenous rights regime expanded gradually with the adoption of various binding and soft instruments at the multilateral and regional levels. This emerging IPR regime was initially firmly within the broader international human rights regime. However, as the salience of indigenous issues grew in international fora, institutions addressing indigenous rights emerged in other issue areas, such as the environment, economic development, cultural heritage, and intellectual property. As a result, the indigenous rights regime came to overlap and interact with binding and non-binding international regulations in these regimes, gradually evolving into a regime complex. Building on my previous work (Gomez-Mera, 2016), I argue that the effects of institutional fragmentation on cooperation outcomes depend on the interaction of two factors: the normative fit between the overlapping regimes and the cross-regime strategies of public and private actors in the regime complex. Normative fit refers to the extent to which the underlying norms and principles in the overlapping regimes complement or collide with one another. Norm collisions in intersecting regimes increase the likelihood of problematic overlaps that undermine the effectiveness of cooperation. When norms are aligned, by contrast, institutional overlaps are more likely to result in more effective cooperation. Yet, a complete understanding of the consequences of complexity also requires consideration of the strategies of actors within the regime complex. States, international organizations, transnational advocacy networks and multinational firms may take advantage of normative and institutional overlaps to promote their interests and/or normative agendas. While self-interested actors may engage in opportunistic strategies that undermine the goals of the regime, others may exploit institutional complexity to pursue their “cooperative” agendas. These cooperative strategies may neutralize or at least offset the negative effects of norm collisions and opportunistic behavior, thus contributing to the effectiveness of cooperation. To illustrate these claims empirically, I focus on three cases of conflict between multinational corporations, national governments, and indigenous activists in Bolivia, Ecuador, and Nicaragua surrounding foreign investment projects in natural resources sectors. These cases highlight the overlaps and tensions between international indigenous rights protections and investment agreements. Because of the plurality of actors involved – states, intergovernmental organizations, transnational and domestic activists, and multinational corporations—they provide an opportunity to examine the alternative strategies that public and private actors can select within regime complexes. Finally, the cases permit closer inspection of interactions among various types of institutions, such as binding international conventions, customary international law, national and regional courts jurisprudence, and soft international and private standards.