The Hidrovía Amazónica project violates the precautionary constitutional principle, which leads to a nullity defect. This is how clear and blunt is the legal analysis of Juan Carlos Ruiz Molleda, from the Legal Defense Institute (IDL).
This principle is applied in cases where there is uncertainty or a lack of scientific certainty about the causes and dangers that certain economic activities could generate.
In the case of the Amazon Waterway, studies and reports show gaps, contradictions and inconsistencies in aspects such as the impact on communities and rivers, sediments and inherent ecosystem processes.
These elements configure a situation with a high probability of a significant environmental impact that would affect the native communities that live around the rivers.
This would affect legal assets such as fishing by native communities, which represents 80 percent of their proteins, seasonal agriculture, and cause very serious environmental damage.
The constitutional lawyer maintains that to avoid that the project "does not generate an irreversible impact on the rights of native communities, the application of the precautionary principle requires suspending the project under current conditions."
By Juan Carlos Ruiz Molleda
June 11, 2019.- The implementation of the Hidrovía project, which aims to dredge the main Amazonian rivers, continues to move despite the lack of scientific certainty about the impacts it generates, especially in relation to rivers, sediments and the inherent ecosystem processes, which is what gives life to rivers and the communities that live in their environment. This situation of scientific uncertainty is incompatible with the precautionary constitutional principle, which leads to a nullity defect in this project. Here are our reasons.
1. Various experts point out that there is a lack of information on the impacts of the Amazon Waterway project
Jorge Abad, lead author of the study and director of the Water Research and Technology Center of the UTEC, perhaps one of the greatest experts in our country on Amazonian rivers, has stated that
“The Amazonian rivers are born in the Andes and are adapting to the geography, geology, vegetation and type of soil through which they flow. In addition, its flow is increasing by the tributaries that, in turn, provide water and sediment. When it has more water and sediment, the river adapts, changes its morphology and dynamics "(1).
He adds that this behavior has not been previously studied in the four rivers included in the project."Before thinking about modifying a river, you have to study it", sentence(2).
Before thinking about modifying a river, you have to study it "
For Abad, an essential issue is sediments:
“If you don't know how they migrate, how long the river is going to replace them, suddenly in a few days we will have to dredge again. Also, where is the dredged sediment going to be deposited? The river has natural areas where it erodes and where it deposits, if this dynamic is not understood, they can be deposited in places where there should be no sediment and change the dynamics of the river "(3).
Moreover, Juan Carlos Paz, general director of Aquatic Transportation of the Ministry of Transport and Communications, the entity in charge of the project, admits in some way this lack of studies, when he states that dredging can have an effect on the dynamics of rivers, but that will be contemplated in the environmental impact study (EIA) that the concessionaire must present to the authorities at the end of November for their approval(4).
2. Need to apply the precautionary principle in this case in the absence of scientific certainty about the impacts of the Hidrovías project
The precautionary principle is recognized in our internal legislation, among other normative bodies, in Article VII of the Preliminary Title of the General Environmental Law, (Law No 28611). In this it is specified that this principle applies
"When there is a danger of serious or irreversible damage, the lack of absolute certainty should not be used as a reason to postpone the adoption of effective and efficient measures to prevent environmental degradation".
For the Constitutional Court (hereinafter TC),
“the precautionary or precautionary principle operates in situations where there are threats of harm to health or the environment and where there is no scientific certainty that such threats could constitute serious harm ”. (STC 02002-2006-AC, f.j. 32).
The concrete application of this principle is specified in the obligation of the State, to
“Adopt precautionary measures in the face of the threat of damage to health or the environment, since the lack of scientific certainty about its causes and effects is not an obstacle for the adoption of actions aimed at protecting the right to the environment and health of the people".(STC. No. 5387-2008-PA / TC, f. J. 12)
However, the absence of scientific certainty is not enough. The presupposition for the application of the precautionary principle is the existence of “reasonable indications”. For the TC, “Although the essential element of the precautionary principle is the lack of scientific certainty to apply it, even when it is not essential to fully demonstrate the seriousness and reality of the risk, it is necessary that there be reasonable and sufficient indications of its existence and that its entity justifies the need to adopt urgent, proportional and reasonable measures ". (STC. No. 3510-2003-AA / TC, f. 6 and 7). On another occasion the TC will establish that
“Although the essential element of the precautionary principle is the lack of scientific certainty to apply it, even when it is not essential to fully demonstrate the seriousness and reality of the risk, it is required that there be reasonable and sufficient evidence of its existence and that its entity justify the need to adopt urgent, proportional and reasonable measures ”. (STC No 09340-2006-AA, f.j. 4)
In accordance with the TC,
“At the precautionary principle, some elements can be recognized. Among them: a) the existence of a threat, danger or risk of harm; b) the existence of scientific uncertainty, due to ignorance, because convincing evidence on the safety of the product or activity could not have been established even when the cause-effect relationships between these and a possible harm are not absolute, or even due to a significant controversy in the scientific world about those effects in question; and c) the need to adopt positive actions so that the danger or damage is prevented or for the protection of the legal good such as health, the environment, ecology, etc. An important characteristic of the noted principle is that of the reversal of the burden of proof, by virtue of which the creators of the product or the promoters of the activities do not constitute a danger or do not harm health or the environment ”. (STC 2005-2009-PA, f.j. 49). (Our underline)
In relation to the first requirement, we must specify that for the application of the precautionary principle, a threat is not configured in the proper terms of the amparo, that is, a certain and imminent threat, but rather that there is a "moderately acceptable possibility that there is a significant danger against a legal asset, a conjecture that they have been configured in the specific case "
(5). Likewise, we must specify that according to the TC this principle implies the reversal of the burden of proof, so that the lack of certainty of the judge about the disputed would harm the defendant.
Following Velásquez Meléndez(6)In the case of the precautionary principle, in the face of a matter of difficult or impossible proof, due to the existing scientific uncertainty, it will be sufficient to have: 1) the probability (high or low) that there really is a risk against the environment or the Health; and, 2) the level of severity (high or low) risk. (STC No 4954-2007-AA, f.j. 5). Accordingly,
“Although it is not essential to fully demonstrate the seriousness and reality of the risk, if it is instead required that there be reasonable and sufficient evidence of its existence to justify the need to adopt urgent, proportional and reasonable measures”. (STC 6550-2006-PA, f.j. 3)
In other words, it is not enough to show that it is probable that there really is a risk against some legal asset, it is only required that we are faced with risks that may generate inadmissible damages. Certainly, not all risks should be subject to protection through mere conjecture, they are required to be risks of significant magnitude.
3. How the implementation of the Hidrovía project threatens the exercise of the right to a balanced and adequate environment for the development of life
Article 15.1 of ILO Convention 169 is very clear. It specifies that the rights of indigenous peoples "to the natural resources existing on their lands must be specially protected." It adds that this right includes "the right of these peoples to participate in the use [...] of said resources." Subsequently, Article 23 of the Convention states that “traditional activities related to the subsistence economy of the peoples concerned, such as hunting, fishing, trapping and gathering, should be recognized as important factors in the maintenance of their culture and of their economic self-sufficiency and development ”. If we take into account that native communities obtain approximately 80% of their protein from the fish they eat, we can conclude that we are facing a threat, which can put at risk indigenous peoples' access to natural resources that guarantee their subsistence.
We have, then, that until now there is a Detailed Environmental Impact Study of the Amazon Waterway that uses inconclusive and very limited data due to the lack of robust, systematic and historical scientific information. There have been no studies that rigorously and objectively analyze the interactions of the project with the sediment of the rivers, which not only fertilizes the shores of the lands of the communities where agriculture is then carried out, but also feeds a community. trophic chain of animals and fish. The real impact on fishing activity and the availability of fish for food is not known. Nor is the cumulative impact that would be generated as a result of the annual maintenance dredging during the concession (20 years), nor the interactions that would occur between this project and other events, such as the systematic oil spills and the contamination of the Amazonian rivers and finally the analysis of the climate change scenarios.
In this case, the reasonable evidence presupposed for the application of the precautionary principle is that the Hidrovía project creates a threat: 1) because there is a risk of damage to the trophic chain of animals that depend on sediments; 2) there is a risk because if fish are affected, native communities that live off fish and seasonal agriculture on the shores are affected. The conclusion is obvious. There is scientific uncertainty about the impacts of this project, since the impact of this project on sediments and inherent ecosystem processes has not been evaluated, but, in addition, there is a threat to the environment and the rights of native communities.
Consequently, there is a need to adopt measures and actions to avoid the danger and high risks to rights that the start of this project could cause. The state duty to protect the environment implies that public authorities are obliged to maintain environmental assets in adequate conditions for their enjoyment by people. This obligation also extends to individuals, who as a consequence of their economic activities can generate an impact on this legal asset.
In the specific case, the different evidences presented in the factual grounds indicate that the execution of the Hidrovías project could generate a substantial impact on the environment and specifically on the main Amazonian rivers, and on the subsistence of the native communities. The lack of systematic and robust studies, necessary to know the possible impact of the project on river ecosystems, and the serious risks generated by the execution of a project in an area so important for the supply of resources for native riverside communities, it represents a threat to fragile ecosystems, and to the supply of resources for native communities.
4. By way of conclusion
In this way, the Hidrovía project directly violates the precautionary principle, which is applied in cases where there is uncertainty or a lack of scientific certainty about the causes and dangers that could be generated as a result of certain economic activities. In this sense, although there is certainty about some impacts that the project could generate, with respect to other important and lasting impacts over time, there is no scientific certainty.
In the present case, the studies and reports show gaps, contradictions and inconsistencies in aspects such as the impact on communities, sediments, ecosystem processes, fishing, among other aspects. These elements make up a situation with a high probability of a significant environmental impact that would affect the native communities that live around the rivers, as a consequence of the implementation of this project, which would have consequences on the legal rights that would be affected. in case the fishing of the native communities and their own seasonal agriculture are affected.
In this sense, to ensure that the execution of the project does not generate an irreversible impact on the rights of native communities, the application of the precautionary principle requires suspending the project under current conditions. Strictly, in this case, the preservation of the environment is required both from the public authorities and from a private entity such as the company that promotes the Hidrovía project, since the authorization for the execution of the project, as has been shown, can cause environmental damage very serious.
(5) Ibid., P. 154.
(6) Raffo Velásquez Meléndez, Evidentiary institutions in the amparo, in: The evidence in the constitutional process, Gaceta Jurídica, Lima, 2010, page 151 and sgts.