PERUVIAN MINING IN TERRITORIAL SEA

• Jurisdiction: Derecho Internacional

International Mining Law and Investment in Latin America and the Caribbean
(Apr 2005)
CHAPTER 16D
PERUVIAN MINING IN TERRITORIAL SEA
Ricardo Harten Costa
Estudio Ferrero Abogados
Lima, Peru

Ricardo Harten is a Senior Partner at Estudio Ferrero Abogados in Lima, Peru since 1980. He obtained his law degree at the Pontificia Universidad Cat´cmb;olica del Peru. Before joining the law firm Mr. Harten was a member of the professional staff in the Lima Office of Arthur Andersen and Co. stanting in 1972, where he was Tax Division Head since 1978.

Mr. Harten served as a Member of the Board of the Comision Nacional de Inversiones y Tecnologias Extranjeras - CONITE, since February 1995. In September 1997 he was elected Chairman of the Board and served in that capacity through September 1999. CONITE is the national governmental agency for the registration of foreign investments with the capacity to enter into juridical stability contracts on behalf of the Peruvian State, with qualified foreign investors. In 1981 Mr. Harten attended the Academy of American and International Law at the International and Comparative Law Center, The Southwestern Legal Foundation, at the campus of the University of Texas at Dallas. He has been a member of the Board of several private business entities in the fields of banking, insurance, manufacturing, mining and tourism.

Mr. Harten is member of the Ilustre Colegio de Abogados de Lima, the Instituto Nacional de Derecho de Mineria y Petroleo, and the Legal Committee of the National Mining Society. He is also a member of the Instituto Peruano de Derecho Tributario, Asociaci´cmb;on Fiscal International - IFA, Instituto Peruano de Investigaci´cmb;on y Desarrollo Tributario - IPIDET, and the Asociacion Peruana de Derecho Mar´cmb;itimo.

I. INTRODUCTION

Despite the fact that Peru has actively participated in the negotiations for the design and drafting of this instrument, it has not adhered to the Convention to date. In this document we will analyze the Peruvian constitutional law and the national positive law on mining matters, contrasting them with the provisions set forth in the Convention of the Law of the Sea regarding these and other related matters.

The sea covers about 70% of the Earth's surface, which indicates how important it is for our planet's existence. It is possible to affirm that the sea has played a preponderant role in the development of civilizations since very remote times and that its influence reaches our ancestors, whose food most likely included marine resources. The sea has not only contributed to providing man's nourishment but also transportation and communication means between countries, which gave rise to the maritime trade that has helped bring out as a result the prosperity of many States.

It is worth adding the strategic importance of the sea to achieve political penetration and military control and the growing interest awaken by non-living sea resources such as oil, gas and minerals, among others.

Peru: A mining country by excellence

Mining exploitation for economic and export purposes has a long tradition in Peru's economic history. Our country became known worldwide due to its legendary gold and silver riches, as a consequence of its geological characteristics. From the sixteenth century to the mid-nineteenth century, silver was, by far, the first Peruvian export. In the twentieth century, copper and more recently gold was the metal that reached such outstanding position. Large mining centers are located in the Sierra region and often at altitudes that exceed 4,000 meters, where no other economic activity but livestock raising can be carried out.

Mining accounts for 50% of Peru's total exports. Currently, the Peruvian mining industry is on the rise and it is expected that mining investment will increase in the next years, which could double the present value of our mineral exports.

Owing to the rise of the mining activity and social progress, the Ministry of Energy and Mines, which is the competent authority of the sector, has seen the need for enacting new legislation to promote private investment for the sustainable development of mining areas, with a competitive legal framework, efficient public administration and adequate information systems, aimed at contributing to the country's...