IACHR Concerned About Peru's Constitutional Court Decision Affecting the Rights of Indigenous Peoples

April 6, 2022

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) is concerned about a recent decision made by Peru's Constitutional Court that says the right of indigenous peoples to prior consultation is not a fundamental right.

Constitutional Court decision EXP. No. 03066-2019-PA/TC dismissed a complaint filed by indigenous communities after mining concessions concerning their land were granted without prior consultation of those communities. The Court said that prior consultation held in International Labour Organization Convention 169 does not amount to a constitutional requirement in Peru. However, the decision failed to consider the fact that the State's Political Constitution says that all treaties that have been ratified by the Peruvian State become national law, or the obligation of the State of Peru to comply with the international obligations it has voluntarily taken on.

Within the Inter-American Human Rights System, the Inter-American Court of Human Rights has said that the right to consultation is a general principle of international law and that "nowadays the obligation of States to carry out special and differentiated consultation processes when certain interests of indigenous peoples and communities are about to be affected is an obligation that has been clearly recognized."

Further, as noted by the Inter-American Court, judges and institutions linked to the administration of justice at every level must exercise a "conventionality control" ex officio, to ensure compatibility between domestic regulations and the American Convention on Human Rights.

The Inter-American Commission therefore urges the State of Peru, and particularly its Constitutional Court, to take all measures necessary to ensure their dispositions comply with the State's international obligations, including those mentioned in the Commission report .

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 071/22

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