Peru is licensing the destruction of its own rainforest, and the Andean Court of Justice has finally been asked to rule on whether that violates the country’s obligations under the trade bloc it belongs to.
The case, admitted this week by the court in the first proceeding of its kind, challenges the government’s repeated extensions of REINFO, the national mining formalization program. The program was created to help informal small-scale miners transition into legal, regulated operators. What it has become is a renewable legal shield behind which illegal mining has industrialized, spreading from Madre de Dios — long the epicenter of the crisis — into the Nanay River basin near Iquitos and further into the Peruvian Amazon.
The government extends a temporary amnesty, the amnesty expires, the government extends it again — rinse, repeat until the “temporary” program becomes the permanent operating environment, and the operating environment is destroying one of the world’s great watersheds. The mechanism is simple: apply for formalization, receive a provisional authorization, continue operating while the application sits in bureaucratic limbo. The application never resolves because resolving it would require inspections the illegal operation could never pass. Extending the program costs the state nothing; enforcing the law means confronting an industry backed by organized crime that employs tens of thousands of people in regions with few economic alternatives.
So the state extends the program, and every extension tells the miner who is not even pretending to formalize that the law will not reach him. Mercury pours into the rivers, dredges tear up riverbanks, deforestation accelerates, and Indigenous communities, whose territories sit on the gold deposits the miners are after, face displacement, violence, and the poisoning of the water they drink and the fish they eat. Indigenous Amazon groups have already urged the United Nations to curb organized crime in their territories rather than militarizing them, a plea that reaches the same structural diagnosis from the other direction. The communities on the ground know that the problem is not that the state is absent; it is that the state is present in precisely the wrong way — extending legal cover to the extraction apparatus while deploying police and military against the communities that resist it.
What makes the Andean Court proceeding significant is that it moves the question from the domestic political arena, where REINFO’s extensions have survived successive administrations, to a regional judicial body Peru is treaty-bound to obey. The Andean Community’s legal framework imposes environmental obligations on member states, and the court that interprets those obligations now has before it the question of whether a government’s affirmative decision to extend a program that demonstrably enables environmental destruction constitutes a violation.
That is not a marginal question. It is the central question. The legal architecture of the Andean Community was designed to prevent member states from using domestic regulatory sleight-of-hand to evade commitments they made at the regional level. A program that began as a good-faith effort to bring informal miners into the legal economy and has become a standing permission structure for industrial-scale illegality is exactly the kind of mechanism that regional enforcement was supposed to catch.
The Peruvian state will argue, as it has argued domestically, that REINFO extensions are a pragmatic response to an intractable problem — that formalization takes time, that tens of thousands of families depend on small-scale mining for survival, that shutting the program down would drive the activity underground. None of that is false. But it is not an answer to the charge that the state has had years to distinguish between the miner trying to formalize and the operation clearing rainforest with heavy machinery, and it has failed to make that distinction. The extension that protects the family trying to climb into the legal economy is the same extension that protects the criminal enterprise. The state has chosen not to build the administrative machinery that would separate them, and that choice — maintained across governments of different parties and stated commitments, as this publication noted during the last election cycle — is what the Andean Court will now examine.
A ruling against Peru would not, by itself, stop the dredges. But it would remove the legal fig leaf. It would force the state to either enforce its own environmental laws or openly defy a regional court ruling. In a country where illegal gold exports now rival the cocaine trade as a source of organized-crime revenue, that is not a small thing.
The question the court will answer is whether a government violates its treaty obligations by licensing the destruction of its own territory. The fact that the question has to be asked by a regional tribunal, rather than answered by the government whose territory it is, tells you most of what you need to know about where the power lies.
The miners know. The communities on the river know. The mercury levels in the water know.