Bolivia: TIPNIS case

Bolivia: TIPNIS case

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By Bartolomé Clavero

TIPNIS is the Isiboro Sécure Indigenous Territory and National Park. As an Indigenous Territory and as a National Park, both since before the current Constitution, the Constitution of the Plurinational State of Bolivia, it has contracted a redoubled obligation to protect the area, redoubled by indigenous territory and by national park, it is worth insisting.

TIPNIS is the Isiboro Sécure Indigenous Territory and National Park, a symbol today of the contradictions between the constitutional order and public policies in Bolivia. As the one and the other, as an Indigenous Territory and as a National Park, both since before the current Constitution, the Constitution of the Plurinational State of Bolivia, it has contracted a redoubled obligation to protect the area, redoubled by indigenous territory and by national park, worth the insistence. The current Constitution has added or, rather, preceded the recognition, by a title expressly superior to itself, of the right to self-determination of indigenous peoples that is exercised through autonomy, which is why the same responsibility of the Such protection must legally fall, if the consequence of such recognition is kept, on the original peoples of the TIPNIS rather than on the State itself.

After the Constitution, contradictory rules and policies have followed in specific relation to the case. I am going to focus on its normative aspect, although the same contradictions between post-constitutional norms will require more than one reference to a political context that is very decisive.

Although we have after referring to previous determinations, let us begin with the Law for the Protection of the Indigenous Territory and Isiboro Sécure National Park-TIPNIS, Law 180, of October 24, 2011, in whose first pronouncement “the Indigenous Territory and Isiboro National Park is declared Sécure – TIPNIS sociocultural and natural heritage, ecological preservation zone, historical reproduction and habitat of the Chiman, Yuracaré and Mojeño-Trinidadian indigenous peoples whose protection and conservation are of primary interest to the Plurinational State of Bolivia ”(art. 1.I).

These terms of protection and conservation are reinforced. After ratifying the “indivisible, imprescriptible, unattachable, inalienable and irreversible character and as a protected area of ​​national interest” of the TIPNIS (art. 1.II), something is added in terms that highlight its novelty: “Likewise, the Territory is additionally declared Indigenous and Isiboro Sécure-TIPNIS National Park as an intangible zone ”(art. 1.III). The double condition is asserted: "Having the Indigenous Territory and Isiboro Sécure National Park –TIPNIS, in addition to the category of indigenous territory, the category of protected area, is constituted, as a guarantee of conservation, sustainability and integrity of the life systems , the functionality of ecological cycles and natural processes in harmonious coexistence with Mother Earth and her rights ”(art. 2).

Law 180 itself draws consequences: "Given the intangible nature of the Isiboro Sécure-TIPNIS Indigenous Territory and National Park, the corresponding legal measures must be adopted that allow the reversion, cancellation or nullification of acts that contravene this legal nature" (art. 4). It even specifies: "In accordance with Article One of this Law, since it is declared intangible territory, settlements and occupations in fact promoted or carried out by people outside the holders of the Isiboro Sécure-TIPNIS Indigenous Territory and National Park, are illegal and will be subject to of eviction with the intervention of the public force if necessary at the request of the competent administrative or judicial authority ”(art. 5). And it amounts to still a greater detail: "It is provided that the Villa Tunari - San Ignacio de Moxos highway, like any other, will not cross the Isiboro Sécure-TIPNIS Indigenous Territory and National Park" (art. 3).

A law so attentive to a specific indigenous territory is strange that it does not refer to prior consultation with the indigenous peoples concerned. According to the United Nations Declaration on the Rights of Indigenous Peoples (art. 19), incorporated by Bolivia into its legal system, the International Labor Organization Convention on Indigenous and Tribal Peoples in Independent Countries (art. 6) and the Constitution of the Plurinational State of Bolivia (Article 30.15), indigenous peoples have the right "to be consulted through appropriate procedures, and in particular through their representative institutions, whenever legislative or administrative measures that may affect them are envisaged" , said with the language of the Constitution, proceeding in any case from said international instruments. How is it that, with this categorical constitutional and more than constitutional precept, the Plurinational State of Bolivia has not proceeded to the due consultation for a law that fully concerns some indigenous peoples? Law 180 does not record its implementation because it was not actually carried out.

There is a reason that not only explains, but also legitimizes Law 180 despite the lack of prior consultation by the State. Previously, a series of parliamentary and governmental decisions had decided the construction of the aforementioned highway between Villa Turani and San Ignacio de Moxos. Even the contracts with the companies had been made and the works, undertaken. For none of these actions had the State proceeded to the indigenous consultation. Faced with such a cumulative policy of fait accompli, the affected indigenous peoples resorted to the path of law. TIPNIS authorities and communities, as well as representative indigenous organizations, adopt formal agreements contrary to a road project that divides the territory in two. In the absence of a response from the Government, the exercise of freedom of expression and demonstration is resorted to, a no less legal and even constitutional means. Its main form was a march from the TIPNIS, the so-called VIII Indigenous March, whose literally apotheosis entry, due to popular heat, in the seat of the Government, La Paz, leads it to recapitulate. The recapitulation is called Law 180. The indigenous peoples had demonstrated even though the State had not consulted them. Although the binding value of what can be called indigenous self-consultation is debated in international law, in this case it is clear that it has it from the moment the State accepted the result precisely through Law 180. Furthermore, in the case, indigenous peoples They have made use of the right to self-determination through the exercise of autonomy, a right expressly recognized not only by international law, but also by Bolivian constitutional law. As a result of all this, when the State agrees to the indigenous claim, Law 180 is the product of an agreement between indigenous peoples and the State.

Law 180 has even had a regulatory norm. It is Supreme Decree 1146, of February 24, 2012, by which the Constitutional President of the Plurinational State of Bolivia, “considering that it is the duty of the State to comprehensively manage protected areas and respect the rights of territorial management of the indigenous peoples in dual status areas, Protected Area - Indigenous Territory ”, decrees (art. 3) that“ the traditional non-commercial use of renewable natural resources is guaranteed by the Yuracaré, Tsiname and Mojeño-Trinitario indigenous peoples who inhabit it, in accordance with their culture and their own conception of development ”and that“ intangibility applies to internal and / or external agents by virtue of the need to conserve exceptional natural and cultural values ​​and guarantee the protection and conservation of resources natural, biodiversity and cultural heritage of indigenous peoples within the TIPNIS ”; consequently, “external human settlements or illegal occupation of lands within the TIPNIS”, “authorize the exploitation of timber for commercial and / or commercial purposes” and “carry out megaprojects, works and large-scale activities that provoke and / or could cause negative environmental impacts and socio-economic and cultural changes ”, in whose prohibition, given the wording of the Law that is thus regulated, it must be understood that the aforementioned highway is included in the heart of TIPNIS. For non-prohibited projects, an evaluation process is established, as well as other provisions for the defense of the TIPNIS in “shared management” and “integral” with the aforementioned peoples, Yuracaré, Tsiname and Mojeño-Trinidad.

Supreme Decree 1146 provides plans for reparation, management, prevention, surveillance, sanctions, interdictions ..., but what has come about in the specific case of TIPNIS practically at the same time, a few days before, is another law of tenor different from 180, to the Law for the Protection of the Indigenous Territory and Isiboro Sécure National Park – TIPNIS. It is the Law of Consultation of the Indigenous Peoples of the Isiboro Sécure-TIPNIS Indigenous Territory and National Park, Law 222, of February 10 of this year 2012. From the outset, this normative sequence may produce strangeness. The matter of the consultation seemed to be considered settled in view of the reasons stated. The same Supreme Decree 1146 seems to take it for granted because it does not refer to it, despite the fact that it is later, even if only in days, to said other law, the consultation law. The new law is also produced as if the regulation of the previous one were not to exist. At the outset, what it, Law 222, implies is what should be seen: “The present Law aims to convene the process of Free Prior and Informed Consultation to the indigenous peoples of the Indigenous Territory and Isiboro Sécure National Park– TIPNIS, and establish the content of this process and its procedures (art. 1). Anyway, what is consultation through a law for a specific case at this point?

The object of the consultation is defined by Law 222 in a double way; On the one hand, “define whether the Isiboro Sécure-TIPNIS Indigenous Territory and National Park should be an intangible area or not, to enable the development of the activities of the Mojeño-Trinitario, Chimane and Yuracaré indigenous peoples, as well as the construction of the Highway Villa Tunari - San Ignacio de Moxos ”; on the other, "to establish safeguard measures for the protection of the Indigenous Territory and Isiboro Sécure-TIPNIS National Park, as well as those destined to the prohibition and immediate eviction of illegal settlements, respecting the TIPNIS demarcation line." The second is redundant. The first is the novelty, so novel that it affects the waterline of Law 180. Now, at this point, the intangibility of the TIPNIS is questioned to reconsider the construction of the road that crosses it, what had been precisely excluded by Law 180. As if it did not exist, without even naming it, the new law deals with the consultation procedure. In fact, Law 222 replaces Law 180, but does not repeal it. The strangeness at the beginning is accentuated at the exit. Contrary to what is usual and what was not lacking in the first law, the new law does not contain any repeal clause.

As with Law 180, Law 222 cannot be explained without a look at the context. After the suspension of the works to advance the highway, there has been another mobilization, in the exercise of freedoms, to the contrary, this is in favor of the project, including through another march, with some indigenous participation. In the TIPNIS today there are not only the communities of the Yuracaré, Tsiname and Mojeñotrinitario peoples, since a process of colonization by the population largely Quechua and Aymara is underway, where adverse interests take root. They are communities of settlers today called intercultural. Politically, those who defend the turn of Law 222 claim that they respond to an always indigenous impulse, but it cannot provide the legitimacy that it will reach with respect to Law 180. It is left to survive to engulf it. This is why it is not formally repealed. The claim reaches the point of presenting the second law as a complement to the first, as its development by imperatives of participation and democracy. By itself, a law without consultation for a specific case, when a general consultation law could have been attempted with the agreement even to start applying it to the TIPNIS case, is neither explained nor justified.

A general consultation law would have prevented what is happening to the detriment of this same mechanism. The Government has launched itself to act in favor apparently of the consultation and substantially, without much dissimulation, of the highway that crosses the TIPNIS. The former lends him the alibi that he is now abiding by international and constitutional law that guarantees the rights of indigenous peoples.

The Government has prepared a protocol that is equally inconsistent and in which something as essential as the subject of the consultation is definitely blurred, including communities currently not identified with the original peoples of TIPNIS, communities today closer to those formed by colonization. There are certainly problematic cases, but the problem is that the State has ended up giving itself the power to define indigenous identity as if there were no representative indigenous institutions. And tell yourself the same about the same query. The State organizes it without the cooperation of the indigenous peoples and also attributes the power to proclaim its result, as if it were a referendum. It closes the way to any possibility of dialectics between different proposals inherent to a process that should be alien to the mere alternative between yes and no in order to lead to consensual agreements. It is well said in the cited articles of the Convention of the International Labor Organization and the Declaration of the United Nations: "to reach an agreement or obtain consent on the proposed measures"; "Obtain their free, prior and informed consent", that of indigenous peoples.

The consultation is thus, with all this, becoming in plain sight a mechanism that does not fulfill its essential function of guaranteeing the rights of indigenous peoples or that may even serve to violate them. It is not an exclusive denaturalization of Bolivia as it operates even at the level of law and the policies of international bodies and agencies. The consultation has been mythologized by isolating it from its context, from a context of self-determination that is exercised through autonomy and participation at discretion, consequently also indigenous. For these purposes, I invite you to review article by article the United Nations Declaration on the Rights of Indigenous Peoples, which is a right in Bolivia. There is the context of the consultation as a guarantee, along with autonomy, of all the rights of indigenous peoples, all of them also based on the right to self-determination.

And remember what has been said by the Constitution of the Plurinational State: "International treaties and instruments on human rights that have been signed, ratified or to which the State has adhered, that declare rights more favorable to those contained in the Constitution, are they will apply preferentially over it ”, let alone laws and policies (art. 256.I). It is said instruments to be included, not only conventions and treaties, but also declarations. In this normative scenario of international and constitutional order, what value of law can take away from Law 222 and its call for consultation that begins by not deserving of the name? It is not only because of its unconstitutional form, but also because of its human rights background, the human rights of indigenous peoples. Neither one nor the other, on the other hand, affects Law 180.

Regarding the case, the TIPNIS Case with capital letters because it contains contradictions and conflicts of the constitutional development in Bolivia, if a recommendation is asked of me, as indeed I have been requested during these days in more than one forum, with all reservations for be neither indigenous nor Bolivian citizen, I would give the following.

In my opinion, the problem does not lie in the fact that the consultation is, in the case, unnecessary or now also untimely because it was irretrievably not prior, but rather that it arises in a situation of fait accompli and pressures to consummate that make it impossible. It would be advisable to bring the rule of law back to a moment of legitimacy that cannot be other than that of Law 180. Immediately present, by means of the consultation that leads to an agreement, a general consultation law. And then proceed.

Bartolomé Clavero - Professor at the University of Seville -

Bolivia, El Alto Airport, April 23, 2012.

Author's Note:

I am preparing this report after a new visit to Bolivia, between April 17 and 23, sponsored by the Plurinational System of Indigenous Peasant Intercultural Communication that is part of the organizations that formed the Pact of Unity at the time of its constitution (Consejo Nacional de Ayllus y Markas del Qullasuyu, Confederation of Indigenous Peoples of Bolivia, National Confederation of Indigenous Peasant Women of Bolivia Bartolina Sisa, Single Trade Union Confederation of Peasant Workers of Bolivia and Trade Union Confederation of Intercultural Communities of Bolivia), and by CEFREC (Center for Training and Filmmaking), and during which CEADESC (Center for Studies Applied to Economic, Social and Cultural Rights), the Anthropology and Archeology Career of the Universidad Mayor de San Andrés, CNAMIB (National Confederation of Indigenous Women) have also opened for me. of Bolivia), MUSEF (National Museum of Ethnography and Folkl ore), CEJIS (Center for Legal Studies and Social Research), as well as various media: ABI (Bolivian Information Agency), ERBOL (Radio Education of Bolivia), Bolivia TV-Channel 7, Patria Nueva, Cambio and La Palabra del Beni . Thank you all. (Originally published at where the pertinent documentation can also be compiled)

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