The Right of Indigenous Self-Determination and the Right to Consultation in the Peruvian Constitutional Tribunal Jurisprudence (2005-2011)




Cordova Flores, Alvaro Rodrigo

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The main argument of this study is that the right of Indigenous peoples in Peru to consultation has little practical force and effect, since the Peruvian Constitutional Tribunal is not prepared to base it on a broader right of self-determination. I centre my investigation on the 2005-2011 decisions of the Constitutional Tribunal of Peru regarding the right to consultation. In these decisions, the application of the right to consultation is divorced from a perspective informed by the right of Indigenous self-determination. The main consequence of this divorce is that it obscures the pragmatic and symbolic dimension of the right to Indigenous self-determination, debilitating the practical and symbolic potential of the right to consultation. The lack of correspondence between the right to consultation and the right of indigenous self-determination is built into the jurisprudence of the Constitutional Tribunal and reflects the bias of its judges. This bias is actually a continuation and accommodation of old prejudices of the dominant society against Indigenous peoples in Peru; it is part of the pervasive cultural discrimination that is embedded in Peruvian society and that has been translated into jurisprudential terms and language. This bias is also a symptom of the invisibility of the cultural manifestations of Indigenous peoples and the resultant obscuring of cultural differences in general. This situation illustrates that the racism that existed in the colony, and continued during the republican era in Peru, has not died, but has merely been transformed into a more subtle form of legal and constitutional colonialism.



Indigenous Self-determination, Constitutional Tribunal-Peru, Judicial politics-Peru, Right to consultation-Peru, Right to consultation-Self-determination, Indigenous peoples-Peru-Legal History