DIFFICULTIES AND PROBLEMS THAT PERU FACES REGARDING THE ADEQUATE REALIZATION OF THE RIGHT TO PRIOR CONSULTATION
| Jurisdiction | Derecho Internacional |
DIFFICULTIES AND PROBLEMS THAT PERU FACES REGARDING THE ADEQUATE REALIZATION OF THE RIGHT TO PRIOR CONSULTATION
Rodrigo Elias & Medrano
Lima
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URSULA ZAVALA is counsel in the Natural Resources Practice Group who specializes in environmental law. She earned her law degree from the Universidad de Lima (2003) and holds an LL.M. from Yale Law School (2009). She advises natural resources companies and other companies in general on the analysis of and compliance with environmental obligations regarding the planning, development, operation and closure stages of their operations. She has experience in rendering advice to the promoters of large scale projects, to investment funds and to multilateral agencies with regards to the potential legal effects of the carbon market and climate change on their projects and deals. She participates in due diligence on projects aimed to qualify to the Clean Development Mechanism (Kyoto Protocol).
Abstract
This year (2019) it will be 24 years since Peru ratified the International Labour Organization's Convention No. 169 ("ILO 169").1 Since that moment, ILO 169 became a part of national legislation, representing a milestone in our country, characterized for its diversity not only in environmental, but also cultural terms. However, unfortunately its ratification has not been followed by positive events, and it could even be alleged that ILO 169 has often been a misunderstood regulation.
In our country, the enforcement of ILO 169 has had, at least, four clear fronts or actors. On the one hand, the State, in its role of guarantor of fundamental human rights, had to face an international norm which posed challenges that had not been previously raised by any other internal regulation. On the other hand, indigenous peoples, a historically neglected group, saw in ILO 169 a possibility of rebelling against policies of assimilation2 regarding their status and what it entails, posed by a lack of knowledge or even ignorance. Additionally, society and investors, who note with concern the great amount of social conflicts regarding the right to prior consultation (some of them being totally justified) and who realize that titles previously obtained in compliance with the law, might be questioned. Finally, the Judiciary and, in particular, the Constitutional Court which have tried to solve the lack of internal regulation and implementation of the right to prior
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consultation and which still face the great challenge of making its realization adequate and advantageous for all the involved actors.
Nevertheless, 24 years seems enough time to adapt and fully apply ILO 169, as a regulation, which only recognized an underlying reality of our country, as well as many others. Despite this, everything seems to indicate that we were not prepared for the implementation of its scope.
The purpose of this article is to identify the causes that can be outlined as the main problems related to the implementation of ILO 169 in Peru, based on the analysis of all the rulings issued by the Constitutional Court. Likewise, it will refer to the worrying increase of judicial processes aimed at challenging the granting of mining concession titles in our country.
Introduction
By means of Legislative Resolution No. 26253 of December 2, 1995, the Peruvian State ratified ILO 169. From that moment onwards, this international regulation became a part of our legal system.
Perhaps one of the most relevant aspects of ILO 169 is its programmatic nature, which determined, since the date of its ratification by the Peruvian State, the imperative need of its subsequent internal regulation.3 However, even though this was always an apparent characteristic of this norm, the years that followed its ratification were defined by absenteeism from the State, which did not approve any regulation to assure the effective and efficient application of its extents.
Furthermore, the severe escalation of social conflicts that arose because of the inactivity of the Executive and Legislative branches did nothing to contribute with the mobilization of the State apparatus. In this scenario, the Constitutional Court, as the highest jurisdictional body of the country, forced these government powers though its rulings to issue a specific regulation that would allow the accurate implementation of ILO 169. Thus, fifteen years later, the Peruvian State enacted the Law on the Right to Prior Consultation, Law No. 29785, on September 7, 2011.
Therefore, just as it happened in other countries, it was the Constitutional Court who outlined the guidelines for drafting the Law on the Right to Prior Consultation by means of the concepts and legal interpretations, relatively adequate for those years, portrayed in its rulings. Unfortunately, this approach has not been considered in subsequent interpretations of ILO 169 by other jurisdictional bodies.
Indeed, currently, the main problem that arises regarding ILO 169 is related to the evaluation that various instances of the Judiciary have been developing on the validity of administrative permits required for the execution of various extractive activities, including the ones of the mining sector. This, to the extent of questioning the mere attainment of mining concession titles, which, in our country, do not grant any surface right and which require further administrative permits to begin mining activities,
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specifically those granted between the date of ratification of ILO 169 and the Law on the Right to Prior Consultation.
Below, we will refer to the main identified problems.
Problem 1: Lack of regulation of the right to prior consultation at a national level
As it has been pinpointed, ILO 169 came in force in 1995, but it took more than 15 years for the issuance of a regulation that would determine its scope internally. This is an excessively long period for the realization of a human right. Moreover, if considering that article 15 of ILO 169 stipulated as an obligation of the State to "[...] establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programs for the exploration or exploitation of such resources pertaining to their lands".
In that sense, it could be argued that the Peruvian State did not establish in a timely manner the procedures for guaranteeing the right to prior consultation. This situation was strongly marked by several problems. Perhaps one of the most relevant ones were the lack of regulated parameters for identifying indigenous peoples and the absence of specific mechanisms to ensure their involvement in the approval of legislative and administrative measures. However, even though the solution of these problems is not clear nowadays, it was not until the enactment of the Law on the Right to Prior Consultation in 2011 that specific guidelines regarding this topic were finally established.
Notwithstanding the above, this scenario posed several questions regarding the need to apply (or not) the right to prior consultation without having an internal regulation for ILO 169. Thus, in the Judgment on File No. 0022-2009-PI/TC, the Constitutional Court analyzed the defense position raised by the Executive branch in connection to the application of ILO 169, concluding the following:
[...] assuming, as it is claimed by the Executive, that it is a programmatic regulation [referring to ILO 169], it must be kept in mind that the Convention was signed by the Peruvian State in 1994, entering into force in 1995. This means that, to date, more than 15 years have elapsed since its enforcement, enough time for its regulation, which did not occur due to the exclusive responsibility of the State. This argument only highlights an omission on behalf of the State 4 (emphasis added).
This means that the Executive branch, in its defense, conveyed that it had failed to establish an internal regulation that would aim at the execution of procedures for the realization of the right to prior consultation, recognizing its entire responsibility. This conclusion is reiterated in the Judgment on File No. 05427-2009-PC/TC, which determined "[...] the obligation of the defendant [i.e., the State] to regulate the right to prior consultation under the terms provided by Convention No. 169".5
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Given the aforementioned jurisprudential criterion, it is worth questioning if the absence of an internal regulation for ILO 169, prevented its fulfillment. In this regard, and following the arguments of various rulings of the Constitutional Court,6 it is necessary to refer to the provisions of the Vienna Convention on the Law of Treaties. Articles 26 and 27 of the referred Convention establish that "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith" and that "[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty". Therefore, from a legal perspective, it is undeniable that the dispositions of ILO 169 needed to be fulfilled from the date of its ratification and this was an obligation of the Peruvian State.
In fact, this criterion has been outlined on multiple rulings of the Constitutional Court itself. As an example, in the previously mentioned Judgment on File No. 05427-2009-PC/TC the Constitutional Court concludes that, notwithstanding the Peruvian State's obligation to regulate the right to prior consultation, "[...] the lack of an internal law was not an excuse for not applying the Convention; and, in any case, it was up to the judge to...
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