¿Qué significa “afectación directa” en el proceso de consulta previa? A propósito de la sentencia del Tribunal Constitucional No 01717-2014-PC

It is important to specify what to understand by direct impact on the prior consultation processes with indigenous peoples. It is the criterion that opens or closes the door to the right to prior consultation. However, the indeterminate nature of the concept of “direct involvement” does not grant a discretionary power to the State. Like any “indeterminate legal concept”, it must be concrete at the time of its application in the specific case, which requires an effort of motivation and justification, all of which is far from absolute discretion. In this article, we question a ruling of the Constitutional Court that establishes a new criterion on what to understand by “direct affectation”, departing in our opinion, not only from its own jurisprudential line, but from the criteria established by Law No 29785, its regulations , and the jurisprudence of the Inter-American Court of Human Rights, among others.