The Commission for Indigenous and Afro-Peruvians and the Environment in the Congress is currently drafting a legislative proposal to enable the organisations representing indigenous peoples or nations to obtain legal recognition through their inscription in the Public Registry (SUNARP).
In an interesting article, the Legal Defence Institute’s (ILD) constitutional expert, Juan Carlos Ruiz, explains that this measure goes hand-in-hand with the legal and political battle to obtain constitutional recognition of a new level of government with autonomous indigenous territorial governments.
Ruiz argues that this is an aspiration of growing importance amongst indigenous peoples in the Amazon. It would involve the recognition of a new level of government under Article 189 of the constitution. Currently there are three: national, regional and local levels. It would involve the implementation of new rules giving indigenous peoples the right to self-determination and autonomy, a right enshrined in the United Nations Declaration of the Rights of Indigenous Peoples. Such a right would also be applicable to those Andean peoples or nations that identify as indigenous.
Ruiz argues that there are two options in securing such a right: either amending the constitution or obtaining a ruling from the Constitutional Tribunal that a law implementing the principle and right to self-determination is constitutional.
He views the first option as politically problematic. He argues that a legal argument could be made to the Tribunal that the lack of means to recognise and exercise this right represents a legislative omission of a constitutional obligation acquired through the ratification of an international convention and, thus, a violation of the rights of indigenous peoples.
Constitutional legal doctrine requires that every time the state recognises a fundamental right it is also required to recognise three obligations: (1) to develop organisms and institutions; (2) to develop processes and procedures; and (3) to allocate the necessary financial resources.
Ruiz admits that the recognition and implementation of these rights and obligations are not generally well understood and, if understood, would be widely opposed because they involve a fundamental shift in the current asymmetry of power between the state and indigenous peoples.
He then goes on to examine and rebut nine arguments that have been, or could be, presented in opposition to a proposal to recognise autonomous territorial governments. He sets out these arguments as including the recognition that the creation of such governments would involve territorial secession and would violate the unity of the national territory; that it would be unconstitutional and illegal; that it would violate the political unity of the state; that the natural subsoil resources belong to the state and not the indigenous peoples; that the constitution only recognises peasant and native communities; and that the constitution does not recognise any form of self-determination.
Until now, these issues have been hotly debated in Ecuador and Bolivia. Indigenous peoples in these countries have mobilised in defense of their rights and these have won acceptance by their governments and wide sectors of their population. The countries have declared themselves as ‘multicultural’ and/or ‘plurinational’. Such rights are also recognised internationally as those of pre-existing indigenous peoples.
Rodrigo Montoya and other anthropologists have sought to understand why this recognition and acceptance has not been forthcoming in Peru. Nevertheless, an increasing number of indigenous peoples (the Wampís and Achuar, for example) are redefining themselves as ‘nations’ and demanding that the Peruvian state be restructured in such ways that their right to self-determination is recognised in law.