Supreme Court of Justice, Instituto de Defensa Legal v. ruling of the Third Civil Chamber of the High Court of Lima of 29/09/2011, 23 May 2013, Case No. 2232-2012
Constitution of Peru
The list of rights set out in this chapter does not exclude any others guaranteed by the Constitution, those of an analogous nature or based on the dignity of man, the principles of the sovereignty of the people, the democratic State of law and the republican form of government.
Treaties ratified by Peru and in force form part of domestic law.
Treaties must be adopted by Congress before their ratification by the President of the Republic, whenever they deal with the following subjects: 1. Human rights; 2. The nation’s sovereignty, dominion or territorial integrity; 3. National defence; 4. Financial obligations of the Government.
Article 57, paragraph 2
Whenever a treaty affects constitutional provisions, it must be approved through the same procedure governing constitutional reform before being ratified by the President of the Republic.
Final transitional provision No. 4
Provisions concerning the rights and freedoms recognized by the Constitution are interpreted in accordance with the Universal Declaration of Human Rights and with treaties and international agreements dealing with the same issues and ratified by Peru.
Labour Procedure Law (No. 29497 of 2010)
Supplementary provision n°10
In accordance with the provisions of the fourth final and transitional provision of the Political Constitution of Peru, individual and collective labour rights shall be interpreted in accordance with the Universal Declaration of Human Rights and the relevant international treaties and agreements ratified by Peru, in addition to the consultation of the pronouncements of the supervisory bodies of the International Labour Organization (ILO) and the opinions or decisions adopted by international courts constituted according to treaties to which Peru is party.
Indigenous and tribal peoples
Direct resolution of a dispute on the basis of international law
Prior consultation/ Citizen participation/ Block of constitutionality/ Direct resolution of a dispute on the basis of international law
This class action suit sought the declaration of unconstitutionality and repeal of Title III of the Ministerial Resolution No. 304-2008 and Supreme Decree No. 028-2008, article 4 and Chapter I of Title 2, which regulated citizen participation in the sub-mining sector, and articles 1.1, 2.1 and 2.2 of Supreme Decree No. 012-2008, which regulated citizen participation in hydrocarbon activities. The main principle of the claim lay in the fact that the standards subject to the action distorted and disregarded the right to consultation enshrined in Article 6 of the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169).
The Court began its analysis by indicating that ILO Convention No. 169 has been ratified by the Peruvian State and therefore the state was obliged to comply with that Convention in good faith, following the principle of “Pacta sunt servanda”. Therefore, the state could not invoke domestic law in order to justify a failure to comply with its obligations. Similarly, the Court indicated that Peru enjoyed a Monistic system in which ratified treaties prevailed over the law. In the specific case of ILO Convention No. 169, the Court indicated that the Constitutional Court, through its case law, had recognized the constitutional nature of that Convention, integrating it into the block of constitutionality.
The Court then pointed out the differences between the right to prior consultation and the right to citizen participation, indicating that:
“The rights to consultation recognized in section 1.a and 2 of Article 6 of ILO Convention No. 169 is afforded to tribal peoples whose social, cultural and economic conditions set them apart from other sectors of society, who are governed by their own customs, traditions, and special legislation; as well as indigenous peoples descended from ancestral populations from the age of the conquest, colonization, or establishment of the current state borders [...] Citizen participation is essentially different from the right to consultation of tribal and indigenous peoples, and is more closely related to the right to participation set out in subparagraph 1.b of Article 6 and the second paragraph of Article 7 of the Convention [...]”3
Subsequently, the Court referred to the work of the Committee of Experts on the Application of Conventions and Recommendations, who in their General Observation concerning Convention No. 169 adopted at the 79th Session in 2008 had pointed out that:
“[C]onsultation can be an instrument of genuine dialogue, social cohesion and be instrumental in the prevention and resolution of conflict. [...] Disregard for such consultation and participation has serious repercussions for the implementation and success of specific development programmes and projects, as they are unlikely to reflect the aspirations and needs of indigenous and tribal peoples.”
Basing its decision on the provisions of ILO Convention No. 169 and the work of the ILO Committee of Experts, the Court concluded that article 2.1 of Supreme Decree No. 012-2008 and article 4 of Supreme Decree No. 028-2008 breached the right to prior consultation, and proceeded to declare them unconstitutional. The other standards subject to the action were declared constitutional since the Court considered that they could be interpreted in the light of Convention No. 169 without infringing that Convention.