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Principio de Legalidad v. Supremacía Jurídica de la Constitución: la legitimidad del control difuso en sede administrativa a la luz de la Sentencia del Tribunal Constitucional No. 3741-2004-AA/TC
(Pontificia Universidad Católica del Perú, 2022-08-15)
dentro de un
Estado Social y Democrático de Derecho. No obstante, pasado varios años, otra sentencia
del sumo interprete constitucional decide dejar sin efecto el precedente vinculante materia
de esta controversia, en tanto arguye que se ha distorsionado...
In this article, a legal controversy arises regarding the binding precedent established by the ruling of the Constitutional Court in the context of the Salazar Yarlenque case. In the above-mentioned binding precedent, it was legitimized the possibility that the administrative agencies that impart justice can disregard infra-constitutional rules that are contradictory to the principles and values constitutionally guaranteed and that define legal system under a Social and Democratic State of Law. Nonetheless, many years later, a different ruling of the Constitutional Court decided to overturn the binding precedent that is subject of this controversial case, as it argued that the interpretation of the scope of the jurisdictional functions in the government has been misinterpreted, whereby these powers would exclusively concern Judiciary Branch and its associated institutions. In that regard, this article of professional sufficiency deepens in the constitutional discussion regarding the boundaries and scope of the jurisdictional functions of public administration as one of the key entities for the proper functioning of the state administration apparatus. Consequently, this paper will analyze the legitimacy of the application of diffuse control, as a legal tool authorized by article 138 of the Constitution, for administrative institutions that administer justice in order to rule on the inapplication of legal norms that, regardless of being lawful, represent a potentially harmful component to general interest and to the protection of fundamental rights of those who are subject to the administration....
In this article, a legal controversy arises regarding the binding precedent established by the ruling of the Constitutional Court in the context of the Salazar Yarlenque case. In the above-mentioned binding precedent, it was legitimized the possibility that the administrative agencies that impart justice can disregard infra-constitutional rules that are contradictory to the principles and values constitutionally guaranteed and that define legal system under a Social and Democratic State of Law. Nonetheless, many years later, a different ruling of the Constitutional Court decided to overturn the binding precedent that is subject of this controversial case, as it argued that the interpretation of the scope of the jurisdictional functions in the government has been misinterpreted, whereby these powers would exclusively concern Judiciary Branch and its associated institutions. In that regard, this article of professional sufficiency deepens in the constitutional discussion regarding the boundaries and scope of the jurisdictional functions of public administration as one of the key entities for the proper functioning of the state administration apparatus. Consequently, this paper will analyze the legitimacy of the application of diffuse control, as a legal tool authorized by article 138 of the Constitution, for administrative institutions that administer justice in order to rule on the inapplication of legal norms that, regardless of being lawful, represent a potentially harmful component to general interest and to the protection of fundamental rights of those who are subject to the administration....
Informe Jurídico sobre la Resolución 2484-2022-SUNARPTR: Una equivalencia errónea y sus efectos sobre los Principios Registrales
(Pontificia Universidad Católica del Perú, 2023-07-31)
regulación en
lo referente a la propiedad horizontal. Si bien plantea la existencia del derecho
de sobreelevación de manera inicialmente acertada, falla al recurrir nuevamente
a los conceptos de aires y a la inclusión del derecho de sobreelevación como
parte...
The Resolution of the Registry Court that originates this work recognizes the ownership of the “air” immediately above real estate units on the roof level to their owners based on the Plenary Agreement of the Plenary CXLIX. This generates conflicts with the Registry Principles of specialty, legitimation and registry publicity. That is why this work will start by defining the concepts of air and rooftop based on Peruvian regulation to explain how the erroneous equivalence of terms carried out by the Plenary CXLIX affects the Registry Principles. It is concluded from the analysis that the terms of air and roof are from different natures and their equivalence is an error from of the Registry Court. Likewise, the application of this Plenary Agreement is not peaceful, since it generates assets without a registry item, ownerships that do not appear in any registry entry and the legal situations that supposedly exist by the Registry Court are not publicized. Finally, Legislative Decree 1568 will derogate article 13, Title II and the Third Final Provision of Law 27157 since its entry into force to generate a new regulation regarding horizontal property. Although it raises the existence of the right of elevation, it fails again bringing the concepts of air and the inclusion of the right of elevation as part of the rooftop....
The Resolution of the Registry Court that originates this work recognizes the ownership of the “air” immediately above real estate units on the roof level to their owners based on the Plenary Agreement of the Plenary CXLIX. This generates conflicts with the Registry Principles of specialty, legitimation and registry publicity. That is why this work will start by defining the concepts of air and rooftop based on Peruvian regulation to explain how the erroneous equivalence of terms carried out by the Plenary CXLIX affects the Registry Principles. It is concluded from the analysis that the terms of air and roof are from different natures and their equivalence is an error from of the Registry Court. Likewise, the application of this Plenary Agreement is not peaceful, since it generates assets without a registry item, ownerships that do not appear in any registry entry and the legal situations that supposedly exist by the Registry Court are not publicized. Finally, Legislative Decree 1568 will derogate article 13, Title II and the Third Final Provision of Law 27157 since its entry into force to generate a new regulation regarding horizontal property. Although it raises the existence of the right of elevation, it fails again bringing the concepts of air and the inclusion of the right of elevation as part of the rooftop....
El álbum del Mundial y el uso ilícito de la imagen de los futbolistas: Informe Jurídico respecto de la Resolución 0086-2019/SDC-INDECOPI
(Pontificia Universidad Católica del Perú, 2023-08-01)
, “3 Reyes”. Es así como, se ha explorado las injerencias del
derecho a la imagen de los futbolistas en el caso, pues para poder emplear la
imagen de los jugadores en la elaboración y comercialización del álbum y sus
respectivas figuritas, se requiere...
This report is about Resolution 086 - 2019/SDC - INDECOPI, which resolved the denounce of unfair competition filed against Capri Internacional S.A. for the production and distribution of the “alternative” album of the World Cup Russia 2018, “3 Reyes”. Thus, the interference of the right to the image of the players in the case has been explored, since to use the image of the players in the production and commercialization of the album and its respective sticker, the license of use must be provided by the holder of this one. In consequence, some questions were made, like the possibility of a conflict of jurisdiction between Indecopi and the Civil Court for the violation of the right to the image made by Capri for producing and distributing an album without having the respective license of use; and if it had been correct to charge it for violation of rules and not for a general clause as Indecopi did. Having arisen these questions and seeking to answer them, different articles of academic journals and books were used to develop the necessary doctrinal base, also, the review of various jurisprudence mainly generated by the Unfair Competition Chamber of the Tribunal of Indecopi was used as the analysis of relevant legislation with emphasis on the Law of Suppression of Unfair Competition. Thus, it was concluded that there would be no conflict of jurisdiction between Indecopi and the Civil Court; at the same time, a charge for violation of rules would be incorrect....
This report is about Resolution 086 - 2019/SDC - INDECOPI, which resolved the denounce of unfair competition filed against Capri Internacional S.A. for the production and distribution of the “alternative” album of the World Cup Russia 2018, “3 Reyes”. Thus, the interference of the right to the image of the players in the case has been explored, since to use the image of the players in the production and commercialization of the album and its respective sticker, the license of use must be provided by the holder of this one. In consequence, some questions were made, like the possibility of a conflict of jurisdiction between Indecopi and the Civil Court for the violation of the right to the image made by Capri for producing and distributing an album without having the respective license of use; and if it had been correct to charge it for violation of rules and not for a general clause as Indecopi did. Having arisen these questions and seeking to answer them, different articles of academic journals and books were used to develop the necessary doctrinal base, also, the review of various jurisprudence mainly generated by the Unfair Competition Chamber of the Tribunal of Indecopi was used as the analysis of relevant legislation with emphasis on the Law of Suppression of Unfair Competition. Thus, it was concluded that there would be no conflict of jurisdiction between Indecopi and the Civil Court; at the same time, a charge for violation of rules would be incorrect....
Sobre la posibilidad del empleador de movilizar geográficamente a una madre trabajadora en periodo de lactancia: hacia un análisis humano de la Casación Laboral n.º 2456-2014-Lima
(Pontificia Universidad Católica del Perú, 2023-08-08)
variandi-, decidió movilizar geográficamente
su puesto de trabajo de Lima a Lambayeque sin considerar tres variables fundamentales: (i) su
condición de madre; (ii) su condición de lactante; y, (iii) los derechos del menor.
Analizaremos si la facultad del...
In the present work of professional sufficiency we will address the case of Mrs. Carmen Milagro Bertha Rodríguez who falls under Labor Cassation No. 2456-2014-Lima whose controversy lies in the fact that the entity - within the framework of its ius variandi -, decided to geographically mobilize her job from Lima to Lambayeque without considering three fundamental variables: (i) her status as a mother; (ii) her nursing status; and, (iii) the rights of the minor. We will analyze if the power of the ius variandi of the employer is absolute and allows him to modify the working conditions of a lactating working mother using as a means of justification "the needs of the service or operation" of his workplace. For these purposes we will use the Political Constitution of Peru, international conventions ratified by our country that are part of the block of constitutionality and an axiological contribution that will allow us to give the human approach that this matter deserves. We will mainly conclude that it is not possible for the employer to make indiscriminate and abusive use of his power of ius variandi in the case of lactating mothers for geographical mobilizations, for which reason he should observe some copulative requirements proposed by the author so that mobilization is understood to be appropriate and constitutional. Otherwise, double harm would be caused: to the lactating working mother and to the newborn, the main person involved in the right to enjoy successful breastfeeding in early childhood and establish bonds of attachment with their caregiver....
In the present work of professional sufficiency we will address the case of Mrs. Carmen Milagro Bertha Rodríguez who falls under Labor Cassation No. 2456-2014-Lima whose controversy lies in the fact that the entity - within the framework of its ius variandi -, decided to geographically mobilize her job from Lima to Lambayeque without considering three fundamental variables: (i) her status as a mother; (ii) her nursing status; and, (iii) the rights of the minor. We will analyze if the power of the ius variandi of the employer is absolute and allows him to modify the working conditions of a lactating working mother using as a means of justification "the needs of the service or operation" of his workplace. For these purposes we will use the Political Constitution of Peru, international conventions ratified by our country that are part of the block of constitutionality and an axiological contribution that will allow us to give the human approach that this matter deserves. We will mainly conclude that it is not possible for the employer to make indiscriminate and abusive use of his power of ius variandi in the case of lactating mothers for geographical mobilizations, for which reason he should observe some copulative requirements proposed by the author so that mobilization is understood to be appropriate and constitutional. Otherwise, double harm would be caused: to the lactating working mother and to the newborn, the main person involved in the right to enjoy successful breastfeeding in early childhood and establish bonds of attachment with their caregiver....
La declaratoria de patrimonio cultural de la nación de bienes inmuebles prehispánicos en territorio de pueblos indígenas: caso Wari, Ayacucho
(Pontificia Universidad Católica del Perú, 2023-04-19)
bien inmueble
prehispánico dentro del procedimiento administrativo para la aprobación de la
delimitación de la declaratoria de patrimonio cultural de la Nación de Wari.
Teóricamente se realiza el análisis socio-antropológico del Derecho, considerando...
Peru has a vast legacy of pre-Hispanic real estate and also a great diversity of indigenous people. In many cases they coexist, such is the case of the pre-HispanicWari real estate located in indigenous territory. In this context, in 2018 the Ministry of Culture summoned the Quechua people to a preparatory meeting for the prior consultation process for the declaration procedure of cultural heritage of the Wari Nation, seeking to approve its delimitation; however, the process did not continue due to the rejection of the population. In this scenario, this research identifies how the State developed the administrative procedure for the approval of the delimitation of the declaration of the Wari cultural heritage, considering the following objectives: 1) To determine how the State applies the regulatory framework of the National cultural heritage in indigenous territories; 2) to know the development of the administrative procedure for the approval of the delimitation of the declaration of the Wari Nation cultural heritage in indigenous territories; and 3) to determine how the Ministry of Culture has approached the recognition of indigenous territories where a pre-Hispanic real estate is located within the administrative procedure for the approval of the delimitation of the declaration of Wari Nation cultural heritage. Theoretically, this research applies a socio-anthropological analysis of Law, considering plural socio-cultural contexts where there are two social groups: the State and the indigenous peoples. This research concludes that the State has applied mainly the regulatory framework for the protection of the National cultural heritage over the right of the Quechua indigenous people, showing institutional weaknesses that prevent the continuity of said procedure, thus jeopardizing the legal protection of the jurisdiction of the indigenous territory and the protection of Wari....
Peru has a vast legacy of pre-Hispanic real estate and also a great diversity of indigenous people. In many cases they coexist, such is the case of the pre-HispanicWari real estate located in indigenous territory. In this context, in 2018 the Ministry of Culture summoned the Quechua people to a preparatory meeting for the prior consultation process for the declaration procedure of cultural heritage of the Wari Nation, seeking to approve its delimitation; however, the process did not continue due to the rejection of the population. In this scenario, this research identifies how the State developed the administrative procedure for the approval of the delimitation of the declaration of the Wari cultural heritage, considering the following objectives: 1) To determine how the State applies the regulatory framework of the National cultural heritage in indigenous territories; 2) to know the development of the administrative procedure for the approval of the delimitation of the declaration of the Wari Nation cultural heritage in indigenous territories; and 3) to determine how the Ministry of Culture has approached the recognition of indigenous territories where a pre-Hispanic real estate is located within the administrative procedure for the approval of the delimitation of the declaration of Wari Nation cultural heritage. Theoretically, this research applies a socio-anthropological analysis of Law, considering plural socio-cultural contexts where there are two social groups: the State and the indigenous peoples. This research concludes that the State has applied mainly the regulatory framework for the protection of the National cultural heritage over the right of the Quechua indigenous people, showing institutional weaknesses that prevent the continuity of said procedure, thus jeopardizing the legal protection of the jurisdiction of the indigenous territory and the protection of Wari....
Interculturalidad en el proceso formativo de la policía
(Pontificia Universidad Católica del Perú, 2023-06-21)
ejercer la función de oficiales de policía en su etapa
de formación. Ésta es multidisciplinaria y brinda especial atención en la protección de los derechos
humanos
individuales y colectivos de todas las personas
, considerando que la labor de policía se...
The professional exercise of police is a dynamic task that requires constant learning, to enforce the law and preserve citizen harmony and thus, be able to legitimize in the community. Education is essential for those who are going to exercise the function of police officers in their training stage. This is multidisciplinary and pays special attention to the protection of the individual and collective human rights of all people, considering that the work of the police is legitimized as soon as it acts to protect and respect them. It is of particular interest for this work, the strengthening of police intervention with respect to the plural diversity of the country, dealing with the topic: Interculturality in the training process of the police, whose objective is to develop a documentary study to design an educational model that consolidate the intercultural approach during the police training process from the year 2023. Cultural participation, teamwork, mutual respect, inclusion and solidarity of the members of all the communities that are part of the Peru collective, are presented in this research to promote ethics — from the local— and promote a symmetrical dialogue, as an essential foundation of the interaction between cultures, from a global perspective. In order to fulfill the purpose of the investigation, a documentary methodological approach was used, where various information on the selected topic was analyzed through an exploratory study of the curriculum of the school of officers of the Peruvian national police, whose systematization allowed us to conclude that it is opportune to reconsider it, to achieve the integration of the issue of interculturality, from a solid educational perspective, related to respect, promotion and protection of human rights....
The professional exercise of police is a dynamic task that requires constant learning, to enforce the law and preserve citizen harmony and thus, be able to legitimize in the community. Education is essential for those who are going to exercise the function of police officers in their training stage. This is multidisciplinary and pays special attention to the protection of the individual and collective human rights of all people, considering that the work of the police is legitimized as soon as it acts to protect and respect them. It is of particular interest for this work, the strengthening of police intervention with respect to the plural diversity of the country, dealing with the topic: Interculturality in the training process of the police, whose objective is to develop a documentary study to design an educational model that consolidate the intercultural approach during the police training process from the year 2023. Cultural participation, teamwork, mutual respect, inclusion and solidarity of the members of all the communities that are part of the Peru collective, are presented in this research to promote ethics — from the local— and promote a symmetrical dialogue, as an essential foundation of the interaction between cultures, from a global perspective. In order to fulfill the purpose of the investigation, a documentary methodological approach was used, where various information on the selected topic was analyzed through an exploratory study of the curriculum of the school of officers of the Peruvian national police, whose systematization allowed us to conclude that it is opportune to reconsider it, to achieve the integration of the issue of interculturality, from a solid educational perspective, related to respect, promotion and protection of human rights....
Una propuesta de medio para la solución definitiva de la controversia internacional sobre la delimitación de la plataforma continental entre Argentina y Chile
(Pontificia Universidad Católica del Perú, 2023-07-05)
, se han analizado cada uno de los medios de solución de controversias
disponibles para las partes, tanto de manera convencional en el Tratado de Paz
y Amistad de 1984 y la Convención de las Naciones Unidas sobre el Derecho del
Mar, como bajo el...
This thesis seeks to present a proposal for a peaceful solution of the international legal dispute that arose in 2021 between Argentina and Chile over an area of the continental shelf of the Mar Austral. To achieve this, each of the means of dispute settlement available to the parties has been analyzed, those under the 1984 Treaty of Peace and Friendship and the United Nations Convention on the Law of the Sea, as well as those under the principle of free choice of means. All in the light of the relevant doctrine, jurisprudence and historical background of the dispute. After establishing that diplomatic means such as direct negotiation, conciliation, mediation, good offices and investigation are not the right ones to achieve a final solution, nor are legal means such as arbitration and the International Tribunal on the Law of the Sea (ITLOS) due to the economic and geopolitical interests of the parties, the following hypothesis has been proved: the International Court of Justice (ICJ) is the ideal means to achieve a definitive solution to this dispute between Argentina and Chile in the Southern Sea. The strength of the ICJ lies mainly in its institutional support, experience and abundant jurisprudence on maritime delimitation issues, characteristics that no other jurisdictional means, not even the ITLOS, shares in its entirety....
This thesis seeks to present a proposal for a peaceful solution of the international legal dispute that arose in 2021 between Argentina and Chile over an area of the continental shelf of the Mar Austral. To achieve this, each of the means of dispute settlement available to the parties has been analyzed, those under the 1984 Treaty of Peace and Friendship and the United Nations Convention on the Law of the Sea, as well as those under the principle of free choice of means. All in the light of the relevant doctrine, jurisprudence and historical background of the dispute. After establishing that diplomatic means such as direct negotiation, conciliation, mediation, good offices and investigation are not the right ones to achieve a final solution, nor are legal means such as arbitration and the International Tribunal on the Law of the Sea (ITLOS) due to the economic and geopolitical interests of the parties, the following hypothesis has been proved: the International Court of Justice (ICJ) is the ideal means to achieve a definitive solution to this dispute between Argentina and Chile in the Southern Sea. The strength of the ICJ lies mainly in its institutional support, experience and abundant jurisprudence on maritime delimitation issues, characteristics that no other jurisdictional means, not even the ITLOS, shares in its entirety....
¿Una pena compartida?: La convivencia de niños y niñas en los establecimientos penitenciarios donde sus madres se encuentran recluidas. Análisis desde el caso de hijos e hijas de mujeres internas en el E.P. Mujeres de Chorrillos y el E.P. Anexo Mujeres de Chorrillos
(Pontificia Universidad Católica del Perú, 2023-11-09)
penitenciario peruano, cobra relevancia cuestionar las implicancias que pueden surgir en este contexto respecto a las limitaciones al desarrollo integral del niño y vulneraciones a sus derechos.
En el presente trabajo de investigación, se desarrolla la revisión...
The cohabitation of children in the penitentiary establishments where their mothers are confined, until they reach three years of age, is a faculty regulated by article 103 of the Penal Execution Code, which aims to preserve the mother-child in the situation of deprivation of liberty through which the women are going through. However, considering the prevalence of the best interests of the child, as well as the current state of the Peruvian prison system, it becomes relevant to question the implications that may arise in this context regarding the limitations to the integral development of children and violations of their rights. In this research work, a systematic review of international legislation, Peruvian regulations and the corresponding literature is carried out to identify the doctrinal foundations, which will later give way to the study of concrete cases that will make it possible to identify the problems and limitations regarding the application of the current regulations. Thus, a case study has been carried out on the children inmate of the E.P. Mujeres de Chorrillos and the E.P. Anexo Mujeres de Chorrillos, based on field work that included visits to these establishments and interviews with the inmates’ mothers, the results of which have made it possible to show the critical situation that children live in these prisons in terms of adequate living conditions. In this regard, a series of recommendations will be proposed to address the problem from the perspective of both the rules of execution of the sentence and the international human rights standards, constituting this work an initial contribution with the aim of showing the reality of a group of children made invisible by the Peruvian prison system...
The cohabitation of children in the penitentiary establishments where their mothers are confined, until they reach three years of age, is a faculty regulated by article 103 of the Penal Execution Code, which aims to preserve the mother-child in the situation of deprivation of liberty through which the women are going through. However, considering the prevalence of the best interests of the child, as well as the current state of the Peruvian prison system, it becomes relevant to question the implications that may arise in this context regarding the limitations to the integral development of children and violations of their rights. In this research work, a systematic review of international legislation, Peruvian regulations and the corresponding literature is carried out to identify the doctrinal foundations, which will later give way to the study of concrete cases that will make it possible to identify the problems and limitations regarding the application of the current regulations. Thus, a case study has been carried out on the children inmate of the E.P. Mujeres de Chorrillos and the E.P. Anexo Mujeres de Chorrillos, based on field work that included visits to these establishments and interviews with the inmates’ mothers, the results of which have made it possible to show the critical situation that children live in these prisons in terms of adequate living conditions. In this regard, a series of recommendations will be proposed to address the problem from the perspective of both the rules of execution of the sentence and the international human rights standards, constituting this work an initial contribution with the aim of showing the reality of a group of children made invisible by the Peruvian prison system...
La responsabilidad internacional del Estado peruano por el incumplimiento del principio de Non-Refoulement durante la pandemia por la COVID-19
(Pontificia Universidad Católica del Perú, 2023-11-11)
internacionales del Estado peruano
derivadas de la protección de los derechos humanos. Frente a ello, la presente investigación
analiza las medidas adoptadas (cierre de fronteras, expulsión de extranjeros y limitaciones al
sistema de asilo) en el contexto de la...
The current context of human mobility has brought new challenges for the international community, especially regarding the response adopted by States. For instance, the cross- border displacement of Venezuelan persons that has been increasing in our country since 2017, in addition to the COVID 19 pandemic declared in 2020, which led to a National Emergency State in Peru, have generated new factual and legal scenarios to the Peruvian Government as international obligations arose concerning the protection of human rights. On that premise, this research analyzes the adopted measures (e.g., border closures, expulsion of non-nationals and restrictions on access to asylum procedures) in the middle of the COVID 19 crisis in order to determine whether Peru violated the principle of non-refoulement. Based on the study of this principle and its Inter-American Human Rights System (IAHRS) standards, the main conclusion is that the Peruvian State committed an international wrongful act because it adopted measures in breach of the principle of non-refoulement during the health emergency caused by COVID 19 in the period 2020-2021. Therefore, Peru has incurred international responsibility that can be enforced in the IAHRS....
The current context of human mobility has brought new challenges for the international community, especially regarding the response adopted by States. For instance, the cross- border displacement of Venezuelan persons that has been increasing in our country since 2017, in addition to the COVID 19 pandemic declared in 2020, which led to a National Emergency State in Peru, have generated new factual and legal scenarios to the Peruvian Government as international obligations arose concerning the protection of human rights. On that premise, this research analyzes the adopted measures (e.g., border closures, expulsion of non-nationals and restrictions on access to asylum procedures) in the middle of the COVID 19 crisis in order to determine whether Peru violated the principle of non-refoulement. Based on the study of this principle and its Inter-American Human Rights System (IAHRS) standards, the main conclusion is that the Peruvian State committed an international wrongful act because it adopted measures in breach of the principle of non-refoulement during the health emergency caused by COVID 19 in the period 2020-2021. Therefore, Peru has incurred international responsibility that can be enforced in the IAHRS....
La razonabilidad de las medidas administrativas en materia ambiental: Un análisis de la Resolución del Tribunal de Fiscalización Ambiental del OEFA Nº 010- 2020-OEFA/TFA-SE en relación al caso de Las Bambas y el Corredor Vial Minero Apurímac-Cusco
(Pontificia Universidad Católica del Perú, 2023-08-01)
respeto del derecho constitucional a gozar de
un medio ambiente sano y equilibrado y por consiguiente, el derecho a la salud
de las poblaciones colindantes con el Corredor Vial en Chumbivilcas.
La facultad otorgada a la autoridad de fiscalización ambiental...
From the environmental quality assessment, conducted by the OEFA in 2019, it detected excesses in the Environmental Quality Standards-ECA of the receiving bodies of Air and Noise in the Apurimac-Cusco Mining Road Corridor in the province of Chumbivilcas, which were attributed to the mineral transportation activity of the company Las Bambas. In this regard, it is argued that the request for Modification of the Environmental Impact Assessment issued by Resolution No. 010- 2020-OEFA/TFA-SE of the Environmental Oversight Tribunal of the OEFA raises a problem in relation to the procedural guarantees of the affected party, which are related to the principles of reasonableness, legality, proportionality and legal certainty; as well as respect for the constitutional right to enjoy a healthy and balanced environment and therefore, the right to health of the populations adjacent to the Road Corridor in Chumbivilcas. The power granted to the environmental oversight authority to require the Environmental Impact Assessment Modification is very effective for the prevention of negative environmental impacts caused by ongoing projects. However, it is of utmost importance that the administrative measures respond to the criterion of reasonableness and do not end up being onerous and unnecessary and that finally end up harming an administered party that develops its economic activity in compliance with its environmental obligations and commitments. In other words, OEFA as an environmental control authority must achieve, through the issuance of measures, to ensure a balance between mining activity and environmental protection....
From the environmental quality assessment, conducted by the OEFA in 2019, it detected excesses in the Environmental Quality Standards-ECA of the receiving bodies of Air and Noise in the Apurimac-Cusco Mining Road Corridor in the province of Chumbivilcas, which were attributed to the mineral transportation activity of the company Las Bambas. In this regard, it is argued that the request for Modification of the Environmental Impact Assessment issued by Resolution No. 010- 2020-OEFA/TFA-SE of the Environmental Oversight Tribunal of the OEFA raises a problem in relation to the procedural guarantees of the affected party, which are related to the principles of reasonableness, legality, proportionality and legal certainty; as well as respect for the constitutional right to enjoy a healthy and balanced environment and therefore, the right to health of the populations adjacent to the Road Corridor in Chumbivilcas. The power granted to the environmental oversight authority to require the Environmental Impact Assessment Modification is very effective for the prevention of negative environmental impacts caused by ongoing projects. However, it is of utmost importance that the administrative measures respond to the criterion of reasonableness and do not end up being onerous and unnecessary and that finally end up harming an administered party that develops its economic activity in compliance with its environmental obligations and commitments. In other words, OEFA as an environmental control authority must achieve, through the issuance of measures, to ensure a balance between mining activity and environmental protection....