The Struggle for Laws of Free, Prior, and Informed Consultation in Peru: Lessons and Ambiguities in the Recognition of Indigenous Peoples

By Salmón, Elizabeth G. | Washington International Law Journal, March 2013 | Go to article overview

The Struggle for Laws of Free, Prior, and Informed Consultation in Peru: Lessons and Ambiguities in the Recognition of Indigenous Peoples


Salmón, Elizabeth G., Washington International Law Journal


I. Introduction

Peru has experienced a rate of sustained economic growth in recent years. This development is owed in part to the frenetic activity of the extractive industries, the expansion of foreign trade, and the signing of free trade pacts.1 In 2009, as a response to the signing of a bilateral treaty with the United States, the interior of Peru witnessed one of its most significant indigenous social protests in recent times with demonstrations that left approximately thirty-three people dead and two hundred injured.2

The events that took place in the Bagua region exposed an undercurrent of cultural tensions amid the conflictive process of economic growth and the demands of indigenous peoples to acquire a political voice in Peru. The protests marked a turning point in legal regulations affecting Peru's indigenous community. Ollanta Húmala, the current president of Peru, addressed the Bagua issue during his campaign3 and later enacted a law mandating free, prior, and informed consultation in efforts to recognize the needs of indigenous peoples.4 Despite the adoption of the new law more than a year ago, the social process has not achieved the promise of collective accord implicit in the law. How might this situation be better understood? Is this setback indicative of an unfinished process in which the legal standards are still inchoate and reveal their limitations, or does it rather point only to the slightest hint of transformation that contrasts with actual state policy?

It must be taken into account that the Peruvian state adopted the law with a double motivation: to redress historical injustices of indigenous peoples and to pacify the social demonstrations carried out by the principal indigenous organizations.5 However, the state's promotion for the secure extraction of natural resources located in indigenous territories was a clear priority. Traditionally in Peru, the regulation of indigenous rights has been characterized by legal invisibility and social exclusion; this includes the omission of the legal denomination "indigenous" for categories such as "communal groups," "peasant and/or rural communities," and "natives."6 The current legal framework, however, adopts the legal denomination of "indigenous peoples" as a way to channel indigenous demands and eradicate violence in the defense of natural resources. Moreover, the increasing influence of regulatory standards issuing from international human rights law has been fundamental in this shift toward the rights of indigenous peoples.

In Peru, public opinion holds that the rules governing free, prior, and informed consultation are usually sufficient measures to remedy social conflict and to disrupt cyclical episodes of violence.7 However, there are various contradictions in the way these objectives have been executed. The current administration recognizes collective rights of indigenous peoples but simultaneously disputes and restricts these rights. With markedly aggressive rhetoric, it has continued to promote the intensive extraction of natural resources in indigenous territories with the intent to sustain the economic boom amid the global financial crisis.8 Meanwhile, indigenous peoples have demanded mechanisms for free, prior, and informed consultation, opposing the installation of large-scale development and investment projects, and have not ruled out options of sabotaging these processes if the consequences do not rule in their favor.9 The indigenous communities' historical frustration is a result of the state's failure to acknowledge their legal rights and demands and has incentivized acts of violence that can be identified as last resort tactics of survival to counteract projects adversely affecting their livelihood and subsistence. In response, the private sector and the state have branded indigenous peoples as extremists.10 This, in turn, has incited the further polarization of demands and the absence of constructive dialogue. The threat or the use of violence has likewise reopened discussions supposedly settled vis-à-vis the application of regulatory procedures. …

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