Going Beyond Recognition: Building an Effective and Sustainable Property Rights Systems for Indigenous Territories

Full text

1
GOING BEYOND RECOGNITION
Building an Effective and Sustainable Property Rights Systems
for Indigenous Territories
Diego Silva
Introduction
Today, Convention 169 of the International Labor Organization (ILO 169) is one of the
most advanced and effective international legal tools that deals specifically with the rights of
indigenous and tribal peoples.1 Primarily signed by Latin American countries, this convention
has paved the way for the adoption of a regional multicultural model of constitutionalism.2 Van
Cott has summarized this model in five sets of rights: recognition of collective entities;
customary norms; collective property rights; languages; and bilingual education.3 Among these
rights, recognition of customary norms and collective property are the most flexible, in that they
are sensitive to gradual change; their improvement could also have a large economic impact on
the lives of indigenous populations of signatory countries.4 This paper will discuss how a better
and broader implementation of these two rights could improve the economic conditions of
indigenous peoples in Latin America.
After indigenous land property is recognized, there is a subsequent process to design and
implement an adequate property rights system governing its use. Based on Elinor Ostrom´s
theory of collective action problems, this paper will argue that, while this process provides for
the improvement of economic conditions, it must be accompanied by the recognition and close
analysis of customary norms. Section two describes the possible settings that an indigenous
community from an ILO 169 signatory country is most likely to face when managing its

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
2
common-pool resources. Open access and collective property arrangements will be addressed, as
they present indigenous communities with social dilemmas over the use of their common-pool
resources, which could lead to resource depletion and conflict. Some of the reasons why
constitutions in Latin America usually grant indigenous communities with the collective property
arrangements over their land, without the right to transfer its ownership, will also be presented.
In the third section, effective and sustainable use of indigenous common-pool resources
under collective property arrangements is addressed. The appropriate use of these resources
cannot be achieved horizontally (group/second-party agreements on how to allocate assets) or
vertically (third-party intervention to deal with allocation over assets) for all possible settings.
Assuming institutional capacity exists to exclude outsiders, the main challenge for an effective
resource management is for the members of the group to reach agreements to avoid over-
exploitation and conflict. These agreements, which will be referred to as commons management
arrangements, are based on the cooperation of group members. Trust and reciprocity are
identified as the main factors leading to cooperation; customary norms are presented as both
outgrowths and facilitators of these factors, insofar as they usually take advantage of the group´s
social capital and they are legitimized by group members. Nevertheless, considering customary
norms may not encompass local arrangements that deal specifically with these issues, or may not
deal effectively with social dilemmas, external regulation seeking a vertical equilibrium is
desirable in some cases but pervasive in others. Ostrom´s ―design principles‖ are presented as an
important tool for public policy, insofar as they can be used to identify the cases in which
intervention is needed, and the sectors where such interventions should and should not take
place, according to the current state of customary norms in a particular community.

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
3
Indigenous territories, property rights arrangements and social dilemmas
Until recently, most indigenous peoples had no legal protection against outsiders entering
their traditional lands to gain access to their resources. However, the past two decades have been
characterized by the increasing interest of international organizations, particularly the United
Nations and the International Labor Organization, to indigenous peoples’ traditional lands. The
successful activism of indigenous peoples and their supporters, as well as the increasing
ecological value of the lands where indigenous communities are settled, were mainly responsible
for this phenomenon. One of the main outcomes of this increasing interest was the inclusion of
Article 14 in ILO 169, which mandates signatory countries to recognize indigenous peoples´
property rights over their traditional lands.
Recognition of indigenous territories could facilitate the emergence of more efficient and
sustainable management arrangements of common-pool resources (a class of resources for which
exclusion is difficult and joint use involves subtractability5) associated with indigenous
territories, such as land, water,and timber among other critical resources. . It is important to
understand that both the nature of common-pool resources, and the particular property rights
arrangements chosen to govern them (i.e. open access, private property, state property, or
collective property), have the potential to bolster social dilemmas that could lead to resource
depletion and conflict.
Open access arrangements
What type of property rights arrangement is associated with indigenous common-pool
resources? Property rights theory suggests that, before exclusion to outsiders is guaranteed,
resource management of common-pool resources is characterized by open access.6 Since

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
4
indigenous peoples of most ILO 169 signatory countries were not originally granted property
rights over their territories and because governments did not have real control over them, anyone
who managed to gain access has been able to enjoy the benefits of these resources.7 This type of
arrangement in particular (open access) is often associated with the ―tragedy of the commons,‖ a
situation in which the independent actions of multiple individuals, maximizing their material
short-term benefits to self, will ultimately deplete a shared limited resource. To exemplify the
tragedy, Hardin (1968) explains how, if in a pasture open to all, ―each herdsman found it more
profitable to graze more animals than the pasture could support, because each took all the
profit from an extra animal but bore only a fraction of the cost of overgrazing, the result would
be a tragic loss of the resource for the entire community of herders.8‖ For this reason, an
open access arrangement for common pool resources is only desirable when there is resource
abundance and competition over resources is absent, but should otherwise be prevented.
Accordingly, recognition of indigenous territories is an important first step away from open
access arrangements because it legitimizes exclusion of non-community members to resource
use. Whether or not exclusion is effectively enforced will depend on the institutional capacity of
the community and any other authorities involved, such as regional and/or national governments.
Collective property arrangements
In the absence of open access, which type of property rights arrangement would be the
most suitable for indigenous traditional territories? Indigenous traditional lands are generally
located in remote regions characterized by low population densities, environmental hazards,
scarce infrastructure, and poorly developed insurance markets.9 In these types of settings, the
benefits of individual assignments of property rights are lower than the costs involved: ―the costs

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
5
of delineating and enforcing boundaries to individual plots are high, and even if feasible, the
benefits from a transition to formal and individualized titles may not be sufficient to cover the
expenses associated with their establishment and maintenance.‖10 These reasons are usually
sufficient to discourage third parties, such as the government, from the adequate provision of
property rights. Under these conditions: group rights may be more appropriate as it is the
community who will have to provide order; individual exclusion is often too expensive;
collective property provides insurance against adverse shocks (by risk egalitarian or risk-pooling
arrangements11); returns on investment are low; and there are usually economies of scale in using
large portions of the resource.12
For example, the Kolla community of Finca San Andres in the province of Salta,
Argentina, has been characterized by a common traditional production practice known as
―transhumance.‖ Through this practice, the Kolla have taken advantage of the different
vegetation belts found along the altitude range of the mountain slopes and have avoided the
hazards that seasonal changes can cause their cattle, the mainstay of their subsistence13. The
Kolla migrate from the mountains to the valleys in the summer, ―to avoid the poisonous snakes
and insects that the summer rains and the sweltering heat breathe. They move in the opposite
direction in March or April, when an icy wind burns the grass in the cerro to yellow stubble and
dries up the water holes.14‖ In this way, the Kolla have enjoyed economies of scale by
collectively owning and using a large portion of land (the valley and the mountain). Recent
privatization of the valley, however, has adversely impacted the Kolla, impeding migration
during the winter ,weakening transhumance and reducing available livestock..15

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
6
In addition to this, there is a perception that indigenous groups would be vulnerable to
alienation of their lands in market transactions, if they are given the right to transfer land
ownership. According to the former director of the Department of Fundamental Principles and
Rights at Work of the ILO, Lee Swepston, when ILO 169 was adopted, members of the
committee in charge of writing the proposal disagreed with some indigenous representatives
advocating for their lands to be inalienable. According to Swepston, ―indigenous communities
have lost their lands for centuries through fraud, or because of inexperience, and it is obvious
that when certain groups do not have the capacity to defend their own interests, their lands
should be inalienable. In many other cases, however, members of the community are aware and
capable of making their own decisions.‖16 Following this line of thought, indigenous peoples of
ILO 169 signatory countries are generally granted collective rights to land without the right to
transfer ownership.17
Collective property and social dilemmas
If indigenous and/or governmental institutions have the capacity to guarantee exclusion
of outsiders from the newly-recognized indigenous territories, open access would be prevented.
Nevertheless, as explained by Feeny et al (1990) and Ostrom (2009)18, the occurrence of social
dilemmas, such as the tragedy of the commons, is not limited to open access arrangements.
Effective and sustainable use of resources under the new regime is still conditional on
cooperation between members of the group, who need to develop commons management
arrangements in order not to over-exploit resources, as well as to prevent conflict. With or
without an agreement, however, the perverse incentives of the tragedy of the commons are still
present. Individuals who maximize material short-term benefits to self would have the incentive

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
7
to withdraw from the agreement, as the resulting benefits are enjoyed individually, whereas the
costs (resource reduction) are borne by all members of the group.19 Accordingly, early studies on
the topic (Mancur Olson and Garret Hardin) that did not differentiate between open access and
collective property arrangements, predicted a low likelihood of self-organization, leading to sub-
optimal outcomes (inefficient and/or unsustainable). Later studies (Elinor Ostrom and Feeny et
al) recognized that cooperation is more likely to happen under collective property arrangements,
as resources are held by an identifiable community of interdependent users.20Furthermore,
Ostrom has rigorously analyzed the characteristics of groups and arrangements under which
successful self-organization is more probable.21
Horizontal and Vertical equilibriums
A horizontal equilibrium is defined as a mutually-agreed allocation of assets that satisfies
resource competitors.22 Cooperation within a group leading to an effective and sustainable
commons management arrangement, for example, is a horizontal equilibrium. In this section,
while customary norms will be presented as means to provide the necessary conditions for
cooperation, these conditions are by no means sufficient. A particular set of customary norms
may not deal effectively with social dilemmas or might not be present in all situations. For these
reasons, regional and national government regulation seeking a vertical equilibrium (sufficient
third-party capabilities to deal with competition over assets23) may be desirable. Nevertheless, in
those cases in which effective customary norms are present or are developing, external regulation
that ignores local arrangements could be pervasive. In such circumstances, polycentric
equilibriums represent an important option. Polycentric equilibriums are situations in which the

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
8
action of many centers of decision making (tribal, local, regional, national), that are formally
independent of each other, lead to effective and sustainable resource use.24 Ostrom´s ―design
principles‖ are presented at the last part of the section as an important tool for public policy.
These principles can be used to identify the cases in which intervention is needed, and the sectors
where such interventions should or should not take place, according to the current state of
customary norms in a particular community.
Customary Norms: seeking a horizontal equilibrium
The environment for cooperation among members of indigenous communities could
potentially be provided by customary norms. According to Ostrom, the two main factors
explaining the presence of cooperation are trust and reciprocity among members. Individuals are
more prone to trust one other, reciprocate that trust, and self-monitor their behavior when norms
are already considered legitimate by the group.25 In this sense, recognition of customary norms is
important because they take advantage of the group’s existent social capital, instead of building
trust and reciprocity from where none previously existed.
For example, Cardenas (2000) conducted field experiments in schoolhouses in Colombia
to assess what factors influenced the decision of experienced villagers to cooperate in a
commons. Villagers were presented with a social dilemma related to the amount of months they
would prefer to spend collecting firewood in a common forest. Whereas each individual’s
pecuniary interest is to spend more time than the optimal amount in the forest (six months), the
optimal amount each individual should spend (one month) would reward villagers with the
highest possible payoff. The experiment concluded that villagers ―use key tools of human
behavior for solving exchange with other humans such as reciprocity (positive and negative),

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
9
reputation, trust and fairness.‖26 Specifically, the study strongly supports the positive impact that
face-to-face communication has on levels of cooperation, self-monitoring and outcomes
achieved: ―the use of language and metaphors from their daily life and from similar dilemmas
helped the groups to overcome the negative effects of not-cooperating and also allowed them to
identify and control free riders in their groups.‖ Other scholars, such as Leibbrandt, Gneezy, and
List (2010), also show that individuals who work in teams on a regular basis are more likely to
adopt and develop norms and trust each other, more so than individuals working alone. 27
External Regulation: seeking a vertical equilibrium
In cases in which effective local norms have emerged and led the group involved to enjoy
a horizontal equilibrium, government intervention could have adverse effects. Some scholars
have posited that regulations intended to improve social welfare by rewarding sustainable use of
common-pool resources appear to crowd out group cooperation. In his ―firewood experiment,‖
Cardenas found that subjects confronted with a regulatory constraint on their behavior tended to
make purely self-interested choices, while in the absence of regulatory control, their behavior
was significantly more group-oriented.28 Ostman (1998) suggests that external control of
common-pool resources may have a negative effect by shifting responsibility to the regulatory
agency and essentially absolving individuals of group obligations.29 In other cases, external
regulations are not well adapted to the specific conditions and needs of a particular community
and represent a constraint on the evolution of effective commons management arrangements. For
example, early settlers of the U.S. western frontier had to devise their own arrangements to meet
new conditions and to avoid the potential losses of open access. In the most successful cases (i.e.
mineral rights, membership in livestock associations, and appropriative water rights), they were

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
10
free to do so; in the other cases (i.e. timber, range, and farm land), they were constrained by
formal land policy with less positive long-term results.30 Other scholars have argued that the
imposition of external regulation has the potential to destroy the social fabric of the group (i.e.
trust, reciprocity, local norms), regressing, in some cases, towards open access and conflict over
resources.31
Customary Norms and External Regulation: Polycentric equilibriums
Two additional settings are possible. The first setting is one in which customary property
norms do not lead to a horizontal equilibrium (i.e. they do not completely solve the group´s
social dilemmas). For example, Colin (2009) rigorously studied the strengths and weakness of
"Plant & Share" (PS) contracts in Côte D´Ivoire. The central principle of this type of
arrangement is that the landowner (usually a local) provides land to a farmer (usually a migrant)
who develops a perennial tree crop plantation. When the plantation starts to produce, three types
of sharing arrangements occur, depending on what is shared: the plantation; the plantation and
the land; or the production. PS contracts normally remain informal in the sense that there is no
legal validation of the transaction by a public authority.32 Colin´s study reveals that the following
elements of this type of arrangement are rarely or never specified explicitly: the length of the
contract; the right to transfer the plantation; and the technical process involved in the creation of
the plantation. For this reason, PS contracts remain incomplete and therefore convey a real
potential for conflicts between landowners and farmers.33 The second setting is one in which
commons management arrangements have not evolved because the conditions under which such
an organization is expected to emerge—increasing resource use pressure and awareness of
resource scarcity—have been absent in the past (i.e. there has not been a demand for a horizontal

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
11
equilibrium).34 According to Holt (2005), it is widely believed that traditional communities use
their resources in a sustainable manner. This belief is not based on the fact that they have
developed effective commons management arrangements but on the fact that traditional
communities lived at low densities, had limited technology, and practiced subsistence, rather
than commercial utilization. Nevertheless, given growing population pressure, increased access
to modern technology, increased market orientation, and steady erosion of traditional cultures,
there no longer are guarantees that effective resource management will be any more likely to be
achieved in the hands of indigenous groups without effective commons management
arrangements. External regulation, leading to a vertical equilibrium in the absence of a horizontal
equilibrium, may be desirable in these cases.35
What are the options?
This paper has argued that in settings in which effective commons management is
reflected in the customary norms of a group, external regulation may be damaging. Settings in
which customary norms are not completely effective, or have not emerged and regulation is
considered necessary, were also presented.
What would be the most appropriate government intervention for the latter type of
settings in which decentralization (traditional property and recognition of customary norms) does
not guarantee good local administration of resources? The disadvantage of external regulation
that is not inclusive of customary arrangements has already been discussed. Another option is
that regional and national governments allow indigenous peoples to face increasing resource use
pressure without intervening. In these conditions, indigenous groups are expected to develop an
increasing awareness of resource scarcity and develop or improve norms that would lead to a

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
12
horizontal equilibrium. There are two problems with this strategy. First of all, it is unrealistic to
think that in the cases in which there is an increasing value of common-pool resources located in
traditional territories (including land), regional and national governments would remain
indifferent. In fact, Alston (1999) and Daudelin (2011) suggest that third parties will decide to
intervene as long as they have the capacity, and as long as it is cost beneficial for them to do so.36
An appropriate example is the garbage industry in Colombia. Long seen as a job for extremely
poor informal recyclers, the garbage business started to grow in the mid-1990s, along with global
environmental concerns. When big taxable companies started to demand regulation for the
garbage sector, the government of Colombia changed the law regarding recycling practices.
Garbage, previously an open access resource in Colombia, suddenly became state property and
informal recycling became illegal.37 It is more realistic to discuss how intervention must take
place, instead of trying to prevent national governments from capturing resources. Secondly, as it
has been discussed throughout this paper, under increasing resource use pressure, the emergence
of commons management arrangements (leading to horizontal equilibriums) is only one
possibility. Although increasing resource use pressure and awareness of resource scarcity stand
as necessary conditions for communities to understand the importance of group agreements, they
are by no means sufficient conditions. Social dilemmas are present even after agreements have
been implemented; it will depend mainly on the levels of trust and reciprocity whether or not
these agreements are sustained over time. Also, in those settings in which local norms do not
provide a horizontal equilibrium, or in which there are no norms, and governments do not have
incentives to intervene, resource depletion and conflict might emerge before an effective
commons management is established.

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
13
There is yet another option: ―Given that customary tenure systems have evolved over a
long period of time, they are often well adapted to specific conditions and needs. Even in
situations where such arrangements reach their limits, building on what already exists is in many
cases easier and more appropriate than trying to re-invent the wheel, which can end up creating
parallel institutions with all their disadvantages.‖38 Elinor Ostrom also considers that larger units
of control (regional and national governments) should be ready to step in when local property
rights systems fail to deal with social dilemmas and disputes over property with outsiders.39 This
is a call for vertical forces (third party) to intervene just enough in order to make horizontal
forces (the community/second party) manage common-pool resources in a sustainable and
effective way. In some cases (those in which there are no local norms), this means a vertical
equilibrium; in others (those in which there are effective and sustainable commons management
arrangements), this means a horizontal equilibrium. Yet in others (those in which norms deal
with social dilemmas in an incomplete way), this means vertical and horizontal forces working
together towards the appropriate management of the resources.
Dominic and Anderson (2008) study the effects of Native American reserves
subordinating their local judicial systems to state law.40 They conclude that communities that
have accepted to transfer their judicial jurisdiction over civil disputes to the states in which they
reside, have experienced higher economic growth than those that have not. This is due to the fact
that credibility of contracts is higher when enforcement institutions enjoy legitimacy over the
parties involved in a particular transaction. Because state law enjoys more credibility among
non-native parties, this policy has attracted higher levels of investment and encouraged credit
and trade from outsiders. Although Dominic and Anderson´s case study does not specifically
account for local property rights systems that fail to address local social dilemmas, it

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
14
demonstrates a situation in which larger units of control (state governments) step in successfully
where customary norms are weak. It is in the same sense that Ostrom suggests larger units of
control should be available where collective action problems exist and cooperation does not
emerge locally. 41
How can a regional or national government know when, and in which sectors, it would be
appropriate to intervene? It has been discussed that third party intervention, without a close
analysis of how customary norms address social dilemmas, can be an obstacle towards the
improvement of indigenous peoples´ economic conditions. A deeper analysis of the particular
customary norms in each case would help to identify what kind of property rights system is
needed, whether or not customary norms are enough to account for social dilemmas, and how to
coordinate the central and local governing structures. After analyzing multiple cases studies,
Ostrom has identified the elements that are systematically present in those cases where effective
commons management arrangements have successfully emerged and were sustained over long
periods of time (termed ―designed principles‖42). These designed principles, updated by Cox,
Gwen and Villamayor (2009) are presented in table 1.
TABLE 1: DESIGN PRINCIPLES
1a
User Boundaries: clear and locally understood boundaries between legitimate users and
nonusers are present.
1b
Resource boundaries: clear boundaries that separate a specific common-pool resource
from a larger social-ecological system are present.
2a
Congruence with local conditions: appropriation and provision rules are congruent with
local social and environmental conditions.
2b
Appropriation and Provision: appropriation rules are congruent with provision rules; the
distribution of costs is proportional to the distribution of benefits.
3
Collective-choice arrangements: Most individuals affected by a resource regime are
authorized to participate in making and modifying its rules.

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
15
4a
Monitoring Users: individuals who are accountable to or are the users monitor the
appropriation and provision levels of the users.
4b
Monitoring the resource: individuals who are accountable to or are the users monitor the
condition of the resource.
5
Graduated sanctions: sanctions for rule violations start very low but become stronger if a
user repeatedly violates a rule.
6
Conflict-resolution Mechanisms: rapid, low-cost, local arenas exist for resolving
conflicts among users or with officials.
7
Minimal recognition of rights: the rights of local users to make their own rules are
recognized by the government.
8
Nested enterprises: When a common-pool resource is closely connected to a larger
social-ecological system, governance activities are organized in multiple nested layers.
The principles presented in Table 1 could serve to evaluate the need that a community has
for third-party intervention. Further, they also serve as a guide for a third party to know where
and how to intervene. Let us consider Colin´s case study regarding the PS contract in Côte
D´Ivoire to illustrate how this process can take place.
The Plant & Share contract: an example of Polycentric regulation
The incomplete nature of the PS contracts could be a basis for conflict as they leave too
much room for uncertainty regarding the rights of the landowner and the farmer. For example,
the farmers expressed the risk of being abusively chased away by the landowner as soon as the
plantation starts to produce, or the risk of being questioned on the terms of the PS contract by a
member of the landowner’s family. The landowners expressed the risk that a farmer could take
advantage of their death by seizing the land. Another potential source of conflict is either party
not making explicit the duration of the contract. Typically the contract ends when ―the plantation
dies.‖ Nevertheless, this is interpreted in different ways by the various parties involved. Some
responses collected are: "The contract ends when the production is too much reduced;" "If before

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
16
it was 10-15 bags and now it is 1 or 2 bags, he has to give me back my land;" "When the trees
die, when the plantation turns into bush;" "If before it was 10,000 cacao trees and now it does not
reach 1,000 trees, that means the plantation is dead." 43
In his study, Colin identifies the presence of witnesses, when the PS arrangement is
concluded, as the most common means of securing the contract. The formalization of the
contract with "informal written receipts" constitutes another common non-legal security measure.
However, these receipts are seldom validated by an authority and they remain largely
incomplete. They do not explicitly specify most of the design principles presented above. For
example, neither the user nor the resource boundaries are clear in these receipts, farmers often do
not know whether or not they have the right to plant food crops on the plot, and they do not
know whether or not they have the right to sell or inherit the plantation (where the sharing part of
the contract was agreed to be the plantation itself).44
A real demand is emerging for security measures for these PS contracts; 92% of the
people interviewed by Colin expressed the need for a public intervention, beyond the mere
"validation" of the receipts. According to Colin, the problems could be avoided through a public
authority's provision and validation of a model contract. According to interviews, the parties
agree that such an intervention would eliminate the tensions of plantation sharing by making
important conditions explicit (such as those mentioned above). This intervention would secure
the farmer’s rights (the main objective being to protect him from the contestation of the
transaction by the landowner’s relatives) as well as the landowner’s rights (by preventing land
appropriation by the farmer).45

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
17
Colin´s case study of the PS contracts in Côte D´Ivoire illustrates how public policy
intervention can be implemented to reach a polycentric equilibrium. Following Colin´s
suggestions, external intervention would be carefully planned to address the weaknesses of
customary arrangements. Instead of creating parallel institutions, which could increase the levels
of misunderstanding and uncertainty, interventions such as the formal model contract take
advantage of familiar community norms. Parties involved in the PS contracts have developed
such arrangements precisely to avoid the conflict brought by previous systems of resource
allocation.46 In this way, the role of public policy should be to encourage and complement this
type of behavior: ―a core goal of public policy should be to facilitate the development of
institutions that bring out the best in humans‖.47 Although PS contracts, like many other types of
customary norms, remain incomplete and a potential source of conflict and ineffective resource
use, public policy should step in, not to replace, but to complement local arrangements.
Conclusions
After the inclusion of Article 14 in ILO 169, which recognizes traditional territories to
signatory countries, Latin American indigenous communities have been presented with an
opportunity to improve the management of their common-pool resources. Recognition of
indigenous territories and other rights expressed in the convention (such as the principle of free,
prior and informed consent48) have the potential to improve exclusion of outsiders from resource
use. This represents a first important step away from open access towards collective property
arrangements. This new arrangement raises social dilemmas that could, however, be solved with
effective commons management arrangements based on cooperation. Although the environment

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
18
for cooperation among members of indigenous communities could potentially be found in
customary norms, an indigenous group’s capacity to develop effective norms varies. Therefore,
in some cases, local norms addressing social dilemmas are not present, or are ineffective. This
paper does however recognize that customary arrangements may defend an unequal distribution
of assets among group members such as in the case of gender. . Third party intervention might be
desirable in these cases, but may be counterproductive if it ignores legitimate local norms based
on trust and reciprocity. For this reason, the proper management of common-pool resources of
indigenous territories cannot be dealt with only horizontally or vertically, for all possible cases.
Regional and national governments in Latin America should carefully examine local norms
before deciding to intervene. Ostrom´s ―design principles‖ are important tools for public policy,
insofar as they can be used to identify the cases in which intervention is needed, and the sectors
where such interventions should and should not take place, according to the current state of
customary norms in a particular community.
Notes
1 Cletus Barié, Pueblos Indígenas y Derechos Constitucionales en América Latina: un
Panorama (La Paz, Bolivia: Instituto Indigenista Interamericano, Comisión Nacional para el Desarrollo de los
Pueblos Indígenas and Editorial Abya-Yala), (2003): 59
2 Donna Van cott, ―Latin America's Indigenous Peoples,‖ Journal of Democracy 18(4) (2006), 132
3 Van cott, ―Latin America's Indigenous Peoples,‖ 132
4 The recognition of collective entities is the first right that Van Cott identifies within the multicultural model. The
right to be different grants indigenous communities the possibility to claim, as recognized different groups of
society, a series of special rights over their territories and ways of living. Although this right is essential for the
further recognition of any other right, it is mostly political and static. While it reflects the struggles that indigenous
peoples and their supporters have undergone in order to obtain it, it is mostly in other terrains that the quality of that
recognition is disputed. Efforts to obtain recognition of their customary norms and legal property over their land
stand as the next logical step to strengthen their position of difference. It is as people with land and law that they can
better participate and influence the political and economical processes of their countries, including the defense of
their languages outside and inside schools (rights 4 and 5 of the model). These two rights (2 and 3), are dynamic in
essence as they can be obtain partially, limited to certain situations or conditioned to specific behaviors. In this sense
I consider that, within the signatories of ILO convention 169, they are the more sensitive to improvement.

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
19
5 Substractability means that level of exploitation by one user adversely affects the ability of another user to
exploit the resource. See Fenny et al , ―The Tragedy of the Commons: Twenty-two years later‖ Human Ecology
18(1) (1990), 3
6 Ostrom, Elinor "How Types of Goods and Property Rights Jointly Affect Collective Action," Journal of
Theoretical Politics, 15(3) (2003), 249. See also Fenny et al, ―The Tragedy of the Commons,‖ 249
7 There are exceptions in Latin America. For example in the ejido system in Mexico the government recognized
indigenous communal property over land. In most of the cases, however, indigenous land were treated as open
access resources: ―when (resources) are owned by no one or paradoxically by everyone, they are used as open access
resources by whomever can gain access.‖ See Ostrom, "How Types of Goods and Property Rights Jointly Affect
Collective Action," 249.
8 Fenny et al, ―The Tragedy of the Commons,‖ 2
9 ―It is a well-know feature of all traditional agrarian societies that they are highly vulnerable to violent fluctuations
in their climate and environmental conditions. Exposure to risk…is especially important in land-abundant
economies insofar as land-intensive techniques and activities usually involve a high degree of dependence on natural
factors.‖ Platteau, Jean-Philippe, "Egalitarian Norms and Economic Growth," in Institutions, Social Norms, and
Economic Development (Harwood Publishers) (2000): 192. See also Deininger, Klaus (2003), ―Property Rights to
Land,‖ Chap. 2 in Land Policies for Growth and Poverty Reduction (Oxford, Washington DC: Oxford University
Press, The World Bank): 29.
10 Deininger, ―Property Rights to Land,‖ 29
11 Plateau, "Egalitarian Norms and Economic Growth," 192
12 Ostrom, "How Types of Goods and Property Rights Jointly Affect Collective Action," 254
13 Rulli, Javiera. ―Kollas Nature Resource Production System in the Yungas-NW Argentina‖, Utrecht University
(2005), 67
14 Schwittay, Anke From peasant favors to indigenous rights: The articulation of an indigenous identity and
land struggle in northwestern Argentina, The Journal of Latin American Anthropology 8(3) (2003), 139
15 Schwittay, ―From peasant favors to indigenous rights,‖ 139
16 Lee Swepston, ―Todos los países que ratificaron del Convenio se merecen comentarios críticos.‖ in Cletus Gregor
Barié, Pueblos Indígenas y Derechos Constitucionales en América Latina: un panorama: 61
17 Lee Swepston, ―Todos los países que ratificaron del Convenio se merecen comentarios críticos,‖ 61
18 Fenny et al, ―The Tragedy of the Commons‖. See also Ostrom, Elinor (2009), "Beyond Markets and states:
Polycentric Governance of Complex Economic Systems," [The Sveriges Riksbank Prize in Economic Sciences in
Memory of Alfred Nobel 2009] Prize lecture, (2009): 408-444.
19 Elinor Ostrom, "How Types of Goods and Property Rights Jointly Affect Collective Action,"243
20 Fenny et al, ―The Tragedy of the Commons,‖ 4
21 Elinor Ostrom, ―Collective Action and the Commons: What Have We Learned,‖ Cornell University video, 59:00
minutes, September 17, 2009, 7:05-8:05
22 Daudelin, Jean (2011), ―Frontier Violence: Property Rights, Commons Management Costs and Distributional
Conflicts,‖ Working Paper, Social Science Research Network, (2010), 7
23 Daudelin, Jean (2011), ―Frontier Violence,‖ 7
24 This could also be understood as functional pluralism. Lavigne-Delville (2000) argues that although normative
pluralism is dysfunctional in many cases, it may be effective in others. See "Harmonising Formal Law and
Customary Land Rights in French-Speaking West Africa," in Camilla Toulmin and Julian Quan, eds., Evolving land
rights, policy and tenure in Africa (London: DFID, IIED, NRI): 97-123.
25 Walker, James and Elinor Ostrom (2009), ―Trust and reciprocity as foundations for cooperation,‖ in karen cook,
Margaret levi, and russell hardin (eds.), Whom Can We Trust?: How Groups, Networks, and Institutions Make Trust
Possible, new york: russell sage foundation, 91–124. See also, Ostrom, ―Collective Action and the Commons,‖
12:20-14:00.
26 Cardenas, Juan Camilo, ―How do groups solve local commons dilemmas? lessons from experimental economics
in the field,‖ Environment, Development and Sustainability, 2 (2000), 320
27 Leibbrandt, Andreas, Uri Gneezy, and John List, ―Ode to the Sea: The Socio-Ecological Underpinnings of Social
Norms,‖ unpublished manuscript (2010).

Diego Silva INTERNATIONAL AFFAIRS REVIEW
Vol. XX, No. 1: Winter 2011
20
28 Cardenas, Juan Camilo, John K. Stranlund, and Cleve e. Willis, ―local environmental control and institutional
crowding-out,‖ World Development, 28(10) (2000), 1720
29 Ostman, A.. External control may destroy the commons. Rationality and Society, 10 (1) (1998), 103-122
30 Libecap, Gary D., "The assignment of property rights on the western frontier: lessons for contemporary
environmental and resource policy," The Journal of Economic History 67(2) (2007), 257-291.
31 Fitzpatrick D, "Evolution and chaos in property rights systems: The third world tragedy of contested access," The
Yale Law Journal, 115 (2006), 996-1048.
32 Colin, Jean-Philippe and François Ruf, "The 'Plant & Share' Contract in Côte d'Ivoire. Incomplete Contracting
and Land Conflicts," 13th Annual Conference of the International Society for New Institutional Economics,
University of California at Berkeley, Walter A. Haas School of Business (2009), 1.
33 Colin, Jean-Philippe and François Ruf (2009), "The 'Plant & Share' Contract in Côte d'Ivoire‖, 1
34 Flora Lu Holt, ―The Catch-22 of conservation: indigenous peoples, biologists, and cultural change,‖ Human
Ecology, 33(2) (2005), 205. See also Ostrom "How Types of Goods and Property Rights Jointly Affect Collective
Action," 253
35 Kramer, R. A., van Schaik, C. P., and Johnson, J. Last Stand: Protected Areas and the Defense of Tropical
Biodiversity, Oxford University Press, New York (1997): 6-7
36 Alston, Lee J., Gary D. Libecap and Bernardo Mueller, "Settlement, Government Policy, and Property Rights in
the Brazilian Amazon: Introduction and Implications for Frontiers Elsewhere in the World," in Titles, Conflict, and
land Use. The Development of Property Rights and Land Reform on the Brazilian Amazon Frontier (Ann Arbor:
University of Michigan Press) (1999): 1-31. See also Daudelin, Jean (2011), Frontier Violence: Property Rights,
Commons Management Costs and Distributional Conflicts (November 11, 2010) Working Paper, Social Science
Research Network.
37 Daniel Samper Ospina ―La basura de Tómás y Jerónimo,‖ Semana Newsweek, Colombia (2009) April. See also
Ospina ―Basuriegos a la caneca‖, El Tiempo Newspaper, (2007) april; Letter from the Colombian Minister of
Environment to the journalist Daniel Samper. URL:
http://www.minambiente.gov.co/contenido/contenido_imprimir.aspx?catID=864&conID=3527&pagID=3341
38 Deininger, ―Property Rights to Land,‖ 62
39 Elinor Ostrom, ―Collective Action and the Commons‖,48:00-49:50
40 Terry L. Anderson and Parker P. Dominic, "Sovereignty, Credible Commitments, and Economic Prosperity on
American Indian Reservations," 641-66
41 Elinor Ostrom, ―Collective Action and the Commons‖, 48:00-49:50
42 Cox Michael, Gwen Arnold, and Sergio Villamayor Tomás, ―a review and reassessment of design Principles
for community-Based natural resource Management,‖ submitted to Ecology and Society (2009)
43 Colin, Jean-Philippe and François Ruf (2009), "The 'Plant & Share' Contract in Côte d'Ivoire, 14
44 ibid
45 ibid, 16
46 see Colin, 2009.
47 Ostrom, "Beyond Markets and states,‖ 435
48 ―states shall consult and cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free, prior, and informed consent for the approval of any project
affecting their lands or territories and other resources.‖ Extracted from URL:
http://www.un.org/esa/socdev/unpfii/en/drip.html