Constitutional Judgment Reaffirms the Significance of Bolivia’s Indigenous Rights

Carla García Zendejas

Due Process of Law Foundation

On June 18 of 2012 the Plurinational Constitutional Tribunal (TCP) in Bolivia issued a ruling[i] which many had hoped would resolve an ongoing situation of violent social conflict which has questioned the State’s position on the rights of indigenous peoples for close to a decade.  The issue under debate is the construction of a road through the indigenous territory known as the Isiboro Sécure Indigenous Territory and National Park –TIPNIS, inhabited since before the Spanish colonization by the Chimán, Yuracaré and Mojeño-Trinitario indigenous peoples.

In recent years Bolivia has adopted a new constitutional framework which recognizes Bolivia’s indigenous cultural heritage and the rights of indigenous peoples, defining the State as plurinational. Considered one of the most forward thinking constitutions in Latin America, the 2009 Constitution incorporated international human rights standards into domestic legislation by adopting principles from the UN Declaration on the Rights of Indigenous Peoples as well as ILO Convention No.169 on Indigenous and Tribal Peoples.[ii]

As one of its first politically charged cases the TCP faced great expectations from the government, as well as the indigenous population. The decision concerns two laws which have not only been challenged on constitutional grounds but are also in stark opposition to one another. On the one hand we have Law 180 decreed in October of 2011 as a result of negotiations with indigenous communities of the TIPNIS who were part of the VIII march to the capital, a widespread protest made up of thousands advocating to stop the Villa Tunari-San Ignacio de Moxos road project. This Law for the Protection of the TIPNIS[iii] established a broad framework of legal protection which confirmed the sociocultural and environmental significance of the area for the Chimán, Yuracaré and Mojeño-Trinitario peoples but also proclaimed the untouchable nature of the territory. In addition, the law declared that the Villa Tunari-San Ignacio de Moxos road would not traverse the TIPNIS, nor would any other road.

Just a few months later, the Bolivian Assembly decreed Law 222[iv] a law which was diametrically opposed to the protection law. The main purpose this law is to call for a free, prior and informed consultation process with the indigenous peoples of the TIPNIS, to reach an agreement regarding the untouchable nature of the territory in order to make development activities viable, including the construction of the Villa Tunari-San Ignacio de Moxos road.

In judgment 0300/2012 the TCP resolved by declaring the constitutionality of both laws, but then conditioned their force and reach by subjecting them to the requirements of the right to consultation of indigenous peoples as recognized by international standards. The tribunal then changes the relationship between these two laws in its ruling, first it reaffirms the constitutionality of Law 180 while indicating that “it cannot be materialized immediately owing to the fact that its effects are subject to the execution of a consultation”. It then uses Law 222 as the instrument for the completion of the pending consultation for the protection law. Secondly, the Tribunal conditions the constitutionality of Law 222 by restating the importance of having indigenous peoples define the substance of the consultation itself, precisely because it pertains to “a fundamental right inherent to these communities, their territory and way of life”. By conditioning the consultation process to an agreement on subject matter, the Tribunal has adapted Law 222 transforming it into a generic consultation law for the indigenous peoples of the TIPNIS. Ultimately, the questions about the untouchable nature of the TIPNIS or the construction of the road are no longer the goal of Law 222, unless the Chimán, Yuracaré and Mojeño-Trinitario peoples decide them to be.

Although the ruling has been criticized for not addressing the road project directly it has reaffirmed the significance of mutual respect within the consultation process, and the “State’s respect for indigenous institutions which must actively participate in the process prior to the consultation, as well as its implementation”. As the struggle for the TIPNIS continues in Bolivia we hope that this judgment permeates amongst the indigenous communities and government agencies who must gather in the consultation realm so that a true and open dialogue may result in the search for a final accord –Bolivia deserves an outcome which can ascertain what this plurinational state can become.