The Permanent Constitutional and Social Chamber of the Supreme Court has in its hands to resolve a conflict generated by the State itself, which not only violates the rule of law, but also contradicts the policy of seeking harmony between the protection of the environment and the exercise of economic freedoms. The fishing union presented a popular action against the National Service of Protected Natural Areas (Sernanp), attached to the Ministry of the Environment (Minam), to annul the absolute prohibition of industrial fishing in protected natural areas (ANP), considering that it contravenes the law. Jessica Luna, president of the SNP, talks about this legal antinomy.
There is a legal contradiction between Sernanp and Minam. The first prohibits industrial fishing in all ANP, but the second allowed it in the Nasca Dorsal National Reserve. Although Sernanp has autonomy, it cannot go against the environmental policies dictated by Minam. What exactly does the ANP Law say about direct use in these areas?
The law that creates the ANP, from 1997, states verbatim that “the regulated use of the area and the exploitation of resources may be allowed or the restriction of direct uses may be determined.” First, it is clear that there is no absolute prohibition. The presence or absence of economic activities depends on each case and must be aligned with the sustainable development promoted by the country. This is defined in the management plans of each reserve, because each ANP is different and has specific objectives. However, a directive that is a lower-ranking norm in the Peruvian legal system introduces an absolute prohibition on fishing in the ANP. The concern is how a lower-ranking standard can contradict the law. Here the principle of normative hierarchy is violated and, what is worse, the rule of law is being attacked. If today a directive is allowed to contradict a law on this issue, tomorrow it could happen in any other area. That’s the first thing.
What is the other reflection?
The second point is that, in 2021, the Nasca Dorsal National Reserve was created, which precisely implements what the ANP Law indicates. The reserve seeks to protect a deep underwater mountain range, its biodiversity and associated ecosystem. Therefore, based on scientific evidence and technical analysis, two zones were established: an area of direct use between 0 and 1,000 meters deep, where activities such as industrial fishing are allowed; and a strict protection zone between 1,000 and 4,000 meters, where economic activities are not allowed.
That is a clear example that, in our country, according to the law, protected natural areas can be created where development and conservation coexist. Furthermore, both Imarpe and Sernanp itself have studies that show that fishing in that area does not affect conservation objectives and that biodiversity remains protected.
Does the fact that the State itself allows the rule of law to be violated put private investment at risk?
Yes, therefore, it is very important to organize and clarify this. I insist on the implication of respecting the principle of legality and normative hierarchy. When this principle is violated, the rule of law is affected, and without it there is no predictability for private investment. Today we talk about fishing; Tomorrow it could be mining, industry or exports. Clear, predictable and transparent rules are essential. The urgent thing here is for the State to organize its own regulatory framework and guarantee coherence between its entities. The implications are serious not only for fishing activity, but for investment and legal stability in general.
Furthermore, in sectors such as fishing, science must be the basis of any public policy decision. We are talking about living resources; For this reason, Imarpe, which permanently studies the sea and resources, must have a much more solid role. The other worrying issue is that in this case there has been a lot of ideology behind it. We all share the genuine interest in protecting the environment, but under that argument, on occasions, formal projects have been stopped without considering the advance of illegal activities.
According to the State Attorney, large-scale fishing in the Nasca Dorsal Reserve was allowed “to avoid going to extremes and to seek harmony between environmental protection and economic freedoms.” However, that same attorney now defends Sernanp and the absolute prohibition in all ANPs. Isn’t that a contradiction?
It is an absolute contradiction of the State itself. The lack of agreement is terrible because of the implications it has for the country. Beyond this specific issue, one cannot decide with one criterion in one case and, in another similar case, with another criterion. When it suits me, when it doesn’t, it depends on the mood I have. No, the law is the law, and the law must be applied objectively and independently.
What exactly is the SNP looking for? Fish in all the ANP or maintain differentiated criteria as until now?
The National Fisheries Society seeks, above all, that there is agreement in the State and that the law is respected. The law says that economic activities may or may not occur depending on the protected area, depending on its particularities and objectives. Therefore, it must be evaluated case by case, based on science, scientific and technical evidence. That is what we are promoting, that the law and the regulatory hierarchy be respected in our country.
Why can fishing and conservation coexist?
Because it has been scientifically proven that industrial fishing can coexist with conservation. A clear example is the Salvamares program, an initiative created by industrial fishing with a real commitment to sustainability and the conservation of our ecosystems, which does not exist in artisanal fishing. During fishing operations, incidental catches may occur, for example, of birds or sea lions. To protect these species, each vessel has a trained sea rescuer who, when this bycatch occurs, identifies, records and safely releases these species. This is training that we do on an ongoing basis and that we are extending to other fleets and fisheries. This is how we work.
Receive your Perú21 by email or WhatsApp. Subscribe to our enriched digital newspaper. Take advantage of the discounts here.
RECOMMENDED VIDEO:
