Lo indígena, el principio de igualdad y la prohibición de discriminación racial en el constitucionalismo peruano. Un análisis desde el derecho antidiscriminatorio

Abstract

This thesis parts from the hypothesis that the indigenous in Peru are represented by a collective that is historically discriminated for racial and ethnic reasons. On account of this form of discrimination the indigenous collective is unable to fully exercise its fundamental rights. The definition of the indigenous is analysed in this study, and the appearance of the category "race" linked to the indigenous and to Peruvian constitutionalism, as well as its relationship with the development of the idea of "race" in Europe. From antidiscriminatory law a historical review is realized of racial discrimination in occidental and Peruvian constitutional law. A critical analysis is made of Peruvian constitutionalism and the indigenous question, centred on the problems generated by racial discrimination. The defect of oficial-urban Peruvian constitutional law are highlighted and it is pointed out that the constitutional recognition of the right to formal equality has not been modified since the nineteenth century, thus its contents are anchored in legal equality without responding to the real necessities of the Peruvian population. It considers that the structural inequality for racial prejudice has similarities with sexual discrimination as, being a social construct, social and legal barriers based upon biological markers go to waste with the development of democratic constitutionalism. Proposals are presented on how to increment the efficacy of the equality principle and of the no racial discrimination clause, as from the development of antidiscriminatory law, with reference to sex (European constitutionalism) and the contributions of racial antidiscriminatory law (U.S. constitutionalism).