Peru Summary

A cursory assessment of options for private conservation of the oceans and coasts in Peru was completed by The Nature Conservancy in 2005. Initial findings indicate that none of the waters and land within the public domain of Peru, including submerged land, can be privately owned. However, concessions are fully allowed if they have an economic purpose; particularly, fisheries and aquaculture activities. In addition, Artesian Exclusive Rights, which give exclusive rights to local fishermen for sustainable uses, may be adaptable for conservation purposes.

Private Property

According to Article 54 of the Peruvian Constitution, the seabed is part of the maritime domain. As part of the maritime domain, seabeds are not subject to private ownership. The Law No. 17752 of 1969 (Ley General de Aguas) also mentions public domain when addressing marine waters, presumably reinforcing the concept that marine waters are not subject to private ownership.

Leases

Article 73 of the Peruvian Constitution leaves open the option of concessions, leasing, and other alternative forms of acquisition in marine waters for economic purposes.1

Article 42 of the General Fishery Law (Ley General de Pesca) allows for concessions in seabed areas as well as in seawater for development of aquaculture activities.2 Article 42 does not specify conservation as a reason to authorize a concession, but there is flexibility for ministerial discretion and an ecological mandate.3

The National Commission of Aquaculture within the Ministry of Fishery is the agency in charge of issuing concessions.4 Concessions require payment of royalties that are determined by a Ministerial Resolution.5 The Ministry can also put the area to public bid.6

The concession agreement is called Convenio de Conservación, Inversión y Producción Acuícola.7 It appears that holders of concession rights are considered the owners of the living organisms in the area included within the concession.8 The initial maximum duration of concessions is 30 years. However, concessions are renewable for equal periods of time.9

The Dirección General de Capitanías y Guardacostas del Ministerio de Defensa is the institution in charge of determining suitable areas for aquaculture in rivers, lakes and marine waters.10 This same institution is in charge of giving concessions for use of water areas that might not involve aquaculture activities.11

Artesian Exclusive Rights

Artesian Exclusive Rights, exclusive rights afforded to local fishermen for sustainable uses, may be an alternative to private property rights for conservation purposes for several reasons:

1. The Peruvian approach to private conservation has generally been through community rights;12
2. Fishing is the most important activity in the maritime regions of Peru;
3. Artisan fishing zones (areas de reserve) are areas reserved for use by small-scale fishermen to the exclusion of large-scale companies;13
4. Communities are exempted from payment of royalties to the Ministry of Fishery;14 and
5. The existence of artisan fishing zones (license by the Government) makes the fishermen think they have a fundamental and inalienable right of access the zones.15