Normative Divergence in the Implementation of the Indigenous and Tribal Peoples Convention in Latin America

Pablo Rueda Saiz*

This Article advances a theory of normative divergence to explain how international legal norms acquire distinct meanings across national contexts. Focusing on the implementation of International Labor Organization (ILO) Convention 169’s right to prior consultation in Chile, Colombia, and Peru, it challenges convergence-centered models of legal diffusion. Through a comparative, historical- institutionalist method, it reveals how institutional pathways—judicialization in Colombia, statutory regulation in Peru, and administrative control in Chile—shape the content, scope, and practical enforceability of consultation rights.

The analysis disaggregates the right into four dimensions (subject, scope, participation, and legal effect) and traces how local actors—including courts, Indigenous and Afro-Descendant organizations, legislators, and bureaucrats—co-produce legal meaning through litigation, negotiation, and mobilization. By theorizing divergence not as deviance but as a constitutive feature of legal diffusion, this Article contributes to critical international law, legal pluralism, and sociolegal studies. It demonstrates that the post-ratification evolution of treaties like ILO 169 depends less on textual fidelity than on the institutional routes through which rights are claimed, contested, and enforced.

*Associate Professor, University of Miami School of Law, pruedasaiz@law.miami.edu