Inejecutabilidad de los resultados de la consulta previa en los asuntos de comunidades y nacionalidades indígenas.

Abstract

This academic research paper explores the palpable ineffectiveness of the results derived from prior consultation within the Ecuadorian legal framework, and how this negligence results in a systematic breach of the collective competencies of indigenous peoples and nationalities. Although the constitutional block comprising the supreme mandate of the 2008 Constitution and ILO Convention 169 establishes this right, factual reality reveals a 'legal fiction' where consultation mechanisms are either inappropriate or void. This study addresses current events, such as the 2025 national mobilizations and the distortion of the penal system through the use of the criminal offense of 'attack and resistance' (Art. 283 of the COIP) against indigenous leadership, constituting an evident fraud against the law intended to evade constitutional control. The thesis contends that the State, by exercising a dual role as an administrator of interests and a guarantor of rights, strips the consultation of its fundamental character, reducing it to a harmless formalism. Finally, a legislative reform is presented, aimed at ensuring the enforceability of consultation processes under the principles of the Constitutional Court of Ecuador. This proposal establishes the nullity by operation of law for any administrative action that disregards this requirement, with the goal of preserving self-determination and the principle of legal certainty for these communities.