Indigenous peoples and their rights: revealing report of the UN Special Rapporteur shows serious and persistent gaps in Costa Rica

Nicolas Boeglin, Professor of Public International Law, Faculty of Law, University of Costa Rica (UCR)

“Sometimes he passes by very sad, does not speak, and sits out by himself.” It hurts a lot, but I try my best not to cry in front of him, so I don’t talk much. It will last forever, it will heal the face, but within it it remains forever”. Wife of Leonel Garcia, aboriginal chief of Cabécar attacked with a machete on December 30, 2022. Extract from the article by Semanario Universidad, entitled “Decades of threats precede attempt murder of indigenous leader”, published on 15 February 2022.

On 28 September 2022, the report prepared by the United Nations Special Rapporteur on the Rights of Indigenous Peoples was released following his on-site visit to Costa Rica at the end of 2021.

It will be recalled that special rapporteurs on specific human rights issues are part of the so-called “non-conventional mechanisms” within the United Nations human rights system (Note 1)The Office of the Special Rapporteur on the Rights of Indigenous Peoples was established in 2001. The previous report on the rights of indigenous peoples in a Latin American state was published by the end of 2019 in Ecuador. With regard to Central America, the last such visit with the related report took place in Guatemala in 2018.

This report on the Rights of Indigenous Peoples in Costa Rica is now available in the various official languages of the United Nations at this link and in the datasheet.

It should be noted that the official delegate of Costa Rica stated in his speech (see official UN press release of 28 September 2022) that:

” Costa Rica reaffirmed its unwavering commitment to the protection of all under its jurisdiction, and their exercise of their human rights, without discrimination. Costa Rica worked to eliminate discrimination, and had accepted and analysed international recommendations, strengthening mechanisms for dialogue and interaction with indigenous peoples, leading to a better understanding of the impediments to their socio-economic development and exercise of their rights.  Their land rights should be respected, as one of the main causes of violence was the lack of certainty in the property system.The bedrock of the identity of indigenous peoples was nourished through their unique ties to their indigenous lands. Costa Rica had made progress with respect to the recovery of indigenous lands, and had filed formal cases, undergoing due process and ensuring continuing recovery”. 

There is no access to the Spanish version of the statement made by the representative of the Costa Rican State in order to clarify any doubts regarding the terms used in the translation into English by the official interpreters of the United Nations.

On some disturbing outcomes.

Beyond the things that are sometimes heard by a Costa Rican delegate in an international forum, a comprehensive and detailed reading of the report as such is suggested: Indeed, it reveals a great deal of very valuable data collected by the UN independent expert during his visit to Costa Rica. At the time of its conclusion, in December 2021, the Special Rapporteur himself had expressed some concerns in a very preliminary manner.

In his report, the Special Rapporteur highlights many of Costa Rica’s government initiatives and erratic actions in their implementation. To begin with, in the first paragraphs of his report, he writes:

8. Although the Special Rapporteur emphasizes the importance of the inclusion, for the first time, of the ethnic self-identification rubric in the 2011 census, he finds it regrettable that the disaggregated statistical data on indigenous peoples required to set social and economic policies relevant for meeting those peoples’ specific needs are lacking.

A State that lacks “disaggregated statistical data on indigenous peoples” can hardly carry out successful public policies, so this first point is already a real challenge for the Costa Rican authorities. At the same time, this first declaration shows the lack of interest of the Costa Rican State as such in properly tackling the problems of indigenous communities.

We read elsewhere in the report that:

33. In 2016, Costa Rica launched the National Plan for the Recovery of Indigenous Territories, led by the Rural Development Institute. The Special Rapporteur notes that, although this plan encourages the land titling, to date, no restitution has taken place. At the various meetings held with indigenous peoples, mention was made of a number of obstacles preventing this plan from ensuring the effective, fair and equitable restitution of their territories.

The report also states that:

48. Social conflict has escalated after over 40 years of indigenous territories’ being occupied by non-indigenous persons without the introduction of an effective State policy on land restitution, which has led to some farmers systematically resorting to violence, particularly in the south (Cabagra, China Kichá, Salitre and Terraba).

49. Attacks on indigenous peoples have not stopped despite the action taken in response to early warnings and the international community’s continuous calls for indigenous peoples’rights to be protected, including the precautionary measures imposed by the Inter-American Commission on Human Rights in favour of the Teribe (Bröran) and Bribri indigenous peoples of Salitre9. According to one report, a total of 86 acts of violence against indigenous peoples were documented in 2020.10

Point 66 states that:

For example, according to reports received, prosecutorial authorities often fail to investigate complaints filed by indigenous persons and ask them to provide evidence of the acts committed. Even when they are reported, acts are often categorized incorrectly and are not investigated ex officio. This situation has been brought to the attention of the competent authorities, but no action has been taken. The Special Rapporteur is particularly concerned about the ineffectiveness of internal mechanisms within the judiciary for punishing discriminatory and racist behaviour by officials.

These are just some of the points made in the report, whose full reading is recommended, as it contains a very detailed analysis of the reality faced by the Costa Rican indigenous communities and the way in which the Costa Rican State attempts to remedy it: In our opinion, this is a comprehensive analysis by the Rapporteur and his team, who were able to meet with various State and non-State entities who were aware of this reality during their visit. It should be noted that in August 2021, the same Rapporteur made an academic visit to the University of Costa Rica (UCR) and to several valuable projects that this university carries out with various indigenous communities.

It should be noted that in his contest with Chile and Venezuela to be elected as a member of the Human Rights Council in 2022 by the United Nations General Assembly (three nominations for two vacancies)Costa Rica included the following in its list of human rights commitments:

“(b) To maintain and strengthen the process of dialogue with indigenous peoples through the implementation of the General Mechanism for Consultation of Indigenous Peoples, which gives effect to the recognized right to free, prior and informed consultation to ensure participation of those peoples in decision -making regarding the issues that directly affect them; also, to continue the stage -by-stage implementation of the National Plan for the Recovery of Indigenous Territories of Costa Rica 2016–2022, with the aim of ending conflicts related to land tenure and the security of inhabitants”

A recent and very valuable report entitled “China Kinchá: the recovery of a land takes away” on the dramatic reality faced by Cabécares indigenous women in Costa Rica allows us to relativize the previous statement made at the United Nations. An earlier note on the violence suffered this time by the Malekus indigenous recuperators goes in the same direction, as well as, this time, a public letter from NGOs in 2020 regarding intimidation and threats suffered by indigenous Bribri and Bröran, and this report of the University Council of the University of Costa Rica (UCR) of 2017.

This recent note of August 25, 2022 reveals the deep mistrust generated by the actions of the Costa Rican State in some indigenous communities.

It goes without saying that in neighboring Panama, after similar struggles, Kunas indigenous communities obtained in 2014 by the Inter-American Court of Human Rights a ruling in favor of their legitimate reinvindications over their ancestral territories (Note 2). Recently, the inter-American judge reported on a similar petition from the Bribris communities of Bocas del Toro in Panama.

About certain recommendations made in Costa Rica.

The conclusions contained in the final part of the Special Rapporteur’s report were of great interest to social sectors and should be able to encourage reflection within some State entities. As indicated above, in several of them, the expert notes that the various legislative or regulatory initiatives have not been implemented in such a way as to benefit Costa Rican indigenous communities.  In the concluding part, the Special Rapporteur states that:

91. The Special Rapporteur points out that the structural causes of violations of indigenous peoples’ rights are the lack of an appropriate land restitution policy and of a legal framework ensuring recognition of indigenous peoples and their own authorities. He is particularly concerned about the structural racism that permeates State institutions, in particular at the local level; the failure to realize indigenous peoples’ economic, social and cultural rights; and the lack of effective measures to protect human rights defenders.

The existence of a “structural racism that permeates the institutions of the State” entails for the current Costa Rican authorities (and for Costa Rican society as a whole) the need to find mechanisms to prevent and punish racist behaviour by their own authorities.

Among the many recommendations made to the Costa Rican State, which should be of interest to various State entities, paragraph 98 reads as follows:

(f) Investigate, try and punish the perpetrators of attacks, including threats, against indigenous leaders;

(g) Ensure the administrative and judicial investigation, prosecution and punishment of the perpetrators of the alleged excessive use of force by the police against indigenous persons involved in requisitioning land in China Kichá in March 2020;

(h) Take appropriate individual and collective redress measures in respect of indigenous victims, in particular those belonging to the Bribri and Bröran indigenous peoples of Salitre and Terraba, respectively, for the murders of the indigenous leaders Sergio Rojas Ortiz and Jehry Rivera, including, but not limited to:

(i) Guarantees of non-recurrence by means of preventive programmes and an early warning system, with the participation of the Office of the Ombudsman;

(ii) Measures of satisfaction, such as a public apology.

(i) Ratify the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean.

Approval of the Escazú Agreement, a foreseeable proposal in Costa Rica.

The international instrument referred to by the Special Rapporteur in this point i) is better known as the Escazú Agreement (Note 3), which was signed in Costa Rica in March 2018.

The regional treaty was recently ratified again in 2022 (Chile), following Argentina and Mexico (which ratified it in 2021). We had the opportunity to analyze the increasingly uncomfortable situation that Costa Rica faces every new accession to this cutting-edge regional agreement, adopted on Costa Rican soil: see our brief note on the subject entitled “Escazú Agreement: Chile is officially State Party number 13. A Few Insights from Costa Rica”.

It is therefore a new exciting, made in Costa Rica, many already realized at the international level. . 

Note that in the above-mentioned 2022 note verbale for the official candidacy of Costa Rica to be elected to the Human Rights Council in October 2022, the Escazú Agreement is not among the commitments of Costa Rica , while in the note verbale of 2019 that Costa Rica presented to the world to try to be elected to the Human Rights Council, there was a mention of the Escazú Agreement (Note 4).

Regardless of this and other inconsistencies of Costa Rica at the international level, on September 28, Colombia approved in the third debate of its House of Representatives the Escazú Agreement , The ratification process has just been consolidated with a fourth debate on 10 October: the Escazú Agreement already has 13 States parties and ratifications with Colombia, which will soon bring the number to 14. The overwhelming majority obtained on October 10 in Colombia shows that when an executive branch explains the scope of the Escazú Agreement, the alleged “arguments” against it tend to vanish (Note 5).

An international forum on implementing this important regional treaty will be held in Colombia on 21 October.

It goes without saying that in Costa Rica, the main chambers of agribusiness, including those of pineapple and banana exporters, oppose the Escazu Agreement.

The formal apology recommended in the report of the Special Rapporteur.

With respect to Costa Rica and the situation of its indigenous peoples, we should recall the recurrent violent actions suffered by indigenous leaders in Costa Rica. 

Extract of the BBC press release titled “Murder of Sergio Rojas: the shock in Costa Rica over the death of the indigenous leader defending the lands of indigenous peoples”, edition of 03/20/2019

Sergio Rojas

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Excerpt from BBC press release entitled “Murder of Sergio Rojas: the shock in Costa Rica over the death of the indigenous leader defending the lands of indigenous peoples”, edition of 03/20/2019

At the same time, an outrageous climate of impunity persists, which has an intimidating effect on many Costa Rican indigenous communities: from this precise perspective, the “public apology” recommended in point h), ii) of the aforementioned paragraph 98 by the United Nations Rapporteur to the Costa Rican State becomes even more relevant.

In June 2020, another UN expert issued a press release saying that impunity for indigenous victims in Costa Rica is very troubling:

““It seems that perpetrators of intimidations, threats, shootings and killings often walk free when their victims are indigenous human rights defenders,” the Special Rapporteur said. Impunity increases the impact of human rights violations committed against human rights defenders, as it conveys a lack of recognition for their role in society and constitutes an invitation to continue violating their rights, she said”.

Another apology, this time for the so-called “drag” lived in the Legislative Assembly building in August 2010 by members of several Costa Rican indigenous communities, could also facilitate the dialogue process: In this regard, see our brief note published commemorating 10 years of this sad episode, which deeply marked (and continues to mark) the indigenous communities of Costa Rica.

Finally, in 2020, when we analyzed the procedure given by the Inter-American Commission on Human Rights (IACHR) to a petition by indigenous people regarding the El Diquis hydroelectric project, we had written in a brief note that:

“Although the Costa Rican Electricity Institute (ICE) announced in 2018 that it “closes” the PHDiquis, it never proceeded to make any consultation to the indigenous communities impacted by this megaproject. Nor is there any public recognition of the State’s responsibility for disrespect for the rights of indigenous communities. The fact that ICE has abandoned this project for reasons beyond the claims of indigenous people does not mean that in years prior to 2018 no harm has been caused to these communities, the natural environment in which their culture is inscribed and the spiritual value that some natural spaces possess for them, which can now be valued by the IACHR”.

In this regard, an earlier 2011 report by the then United Nations Special Rapporteur entitled “The situation of indigenous peoples affected by the Diquís hydroelectric project in Costa Rica” It highlighted the shortcomings of the Costa Rican State in carrying out, this time, a megaproject that has a negative impact on Costa Rican indigenous populations. Item 12 in his 2011 report states:

” 12. The Special Rapporteur considers that a consultation process on the hydroelectric project should have been initiated before the technical studies had begun, which would have allowed the affected indigenous communities to participate in the initial decisions. On the contrary, the design of the project is at an advanced stage, and the Government has taken several decisions committing itself to the study and elaboration of the project, without adequate prior consultation. It is clear to the Special Rapporteur that in this situation, although the hydroelectric project has not yet been finally approved, the capacity of indigenous peoples to exercise their right to freeIt has been undermined”.

The Special Rapporteur’s 2022 report provided some perspective.

This new report of the United Nations in this year 2022 comes to detail in a very complete way the situation of total vulnerability and defenselessness of many indigenous communities in Costa Rica.

On the date of 2022, when indigenous peoples are internationally commemorated, the United Nations Office in Costa Rica warned that:

“… in Costa Rica poverty reaches 23% of households, however, in the case of indigenous peoples, the figures increase considerably. For example: in the village of Cabécar it is 94%; in the village of Ngäbe 87% and in the village of Brörán 85%”

It should be noted that this report follows a recent decision concerning monoculture in Paraguay through a conventional UN mechanism such as the Human Rights Committee (see text of the opinion of October 2021): it is a decision that should interest several communities in Costa Rica that suffer negative impacts from monocultures (in particular what is read in paragraphs 8.6 to 8.8 of the aforementioned opinion). There is no doubt that this opinion is of interest to many other indigenous communities in Latin America (Note 7) living situations very similar to that of the courageous and persevering community of Campo Agua’‍, of the Ava Guaraní people.

It should also be noted that this report of the United Nations Special Rapporteur on Costa Rica is published after the Inter-American Court of Human Rights adopted a landmark judgment against Argentina in 2020 (see Lahka Honhat judgment): which expands the scope of jurisprudence in this area in a remarkable way, in particular for the ESC (Economic, Social, Cultural and Environmental Rights) (Note 8). The former President of this regional court did not hesitate to write in his reasoned vote that this sentence represents a real “milestone”:

The Lhaka Honhat case represents a significant step forward in inter-American case law for three main reasons. First of all, this is the first time that the Inter-American Court has taken an autonomous position on ESCs affecting indigenous peoples and communities. Second, unlike the precedents it had had the opportunity to hear, the Judgment declares the violation of four SCERs that can be derived and protected by Article 26 of the Pact of San José – right to cultural identity, in terms of participation in cultural life, right to a healthy environment, right to food, and right to water – . Thirdly, orderly reparations are directed in a differentiated way, trying to restore the violation of each of the social, cultural and environmental rights declared violated in the judgment»

As is well known, the jurisprudence of the Inter-American Court of Human Rights (Note 9) is not limited to ordering measures from the incriminated State in a specific case, but each of its judgments calls upon the other States of the American Hemisphere and invites them to address the shortcomings and gaps in their respective national legal systems: Failure to remedy them constitutes a veiled invitation to international litigation before the organs of the inter-American system.

As a conclusion

Leaving aside the inter-American human rights system, it is to be hoped that these new recommendations coming from the United Nations will be widely disseminated and known by many different sectors in Costa Rica. 

And that, at some point, they can inspire policy sectors on the urgent need to gradually address the grave situation experienced by indigenous communities in Costa Rica. The deep mistrust with which many of them live daily is an obstacle that must be overcome little by little: in that sense, this United Nations report offers valuable guidelines and tools to various entities of the Costa Rican State.

In addition, civil society organizations and the social movement for the rights of these communities can activate the various international mechanisms, in order to force the Costa Rican State to comply with the various international human rights obligations it has assumed, without extending its benefit to the indigenous communities, as this report clearly states.

— Notes —

Note 1: This informative publication of the United Nations entitled “Indigenous peoples and the United Nations human rights system” makes it possible to better place these unconventional mechanisms in relation to conventional mechanisms.

Note 2: In this judgment against Panama in 2014, which responds favorably to a petition filed by the Kunas indigenous communities of Panama, the final operative part reads that the Court orders that:

12. Other laws and policies address specific aspects of the recognition and protection of the indigenous peoples. Act No. 5251of 11 July 1973 establishes the National Commission on Indigenous Affairs, assigning to it various functions, such as improving living conditions, safeguarding the indigenous peoples’ rights, and institutional coordination. The purpose of the Act on Access to Justice for the Indigenous Peoples of Costa Rica (Act No. 9593) is to ensure respect for indigenous cultures in the State justice system; however, it incorrectly refers to the indigenous peoples as “populations”, thereby minimizing their legal status. In addition, article 339 of the Code of Criminal Procedure provides for the concepts of “cultural diversity” and “cultural expertise” in criminal proceedings.

Note 3: We refer our esteemed readers to this recent collective work that explains the scope of this innovative regional treaty approved in Costa Rica in March 2018: ATILIO FRANZA J. & PRIEUR M. (dir.), Escazú Agreement: international approach, Editorial Jusbaires, Buenos Aires, 2022, 670 pgs.

Note 4: On the 2022 elections to the UN Human Rights Council, see our brief note: BOEGLIN N., “Latin America ahead of the elections to the UN Human Rights Council (for the period 2023-2025): Brief notes”published in the Expert Voice section, Portal of the University of Costa Rica (UCR), edition of August 30, 2022, available here.

Note 5: The same effect on the numbers obtained was verified in Chile in the votes held in the two chambers of the Chilean Legislative Power in less than 20 days in May 2022 in favor of the Escazú Agreement: On 11 May, the Chamber of Deputies approved it with 105 votes in favor, 34 against and 3 abstentions; and on 31 May the Senate approved it with 31 votes in favor, 3 against and 11 abstentions. These indisputable majorities show that the alleged “arguments” against the Escazú Agreement no longer impress but a few, and that they are part of the past. In turn, these figures reached in Colombia and Chile recall that, in November 2020, the Senate of Mexico approved the Escazú Agreement unanimously; that, in September 2020, In Argentina, the vote in the Chamber of Deputies registered 240 votes in favor, 4 against and 2 abstentions; and that, in 2019, the bicameral Parliament of Uruguay approved it unanimously

Note 6: Regarding the murder of Sergio Rojas on March 18, 2019, we had the opportunity to examine the letters made public by the United Nations regarding the specific requests made to the Costa Rican authorities about the murder of Sergio Rojas. Several of these United Nations requests sought that similar events would not be repeated in Costa Rica. Another indigenous leader in Salitre, Jerhy Rivera, was murdered on February 24, 2020. It should be noted that the Human Rights Committee, a conventional mechanism of the United Nations, has also expressed its deep concern at the violence in Costa Rica against indigenous leaders: in its observations in September 2020 to the replies given by Costa Rica, the UN Human Rights Committee stated that:

“The Committee takes note of the information provided by the State Party concerning the National Plan for the Restoration of Indigenous Territories. However, it requires information on the time frame for its implementation and measures to guarantee in practice the right of indigenous peoples to lands and territories that they have traditionally owned or occupied, including through legal recognition and necessary legal protection. The Committee should also comment on the information provided that illegal occupations of non-Aboriginal people were continuing.

The Committee reiterates its recommendation on the need to provide the necessary legal means to ensure the recovery of inalienable lands already granted to indigenous peoples through national legislation, as well as to provide adequate protection, including through effective remedies, to indigenous peoples who have been victims of attacks. The Committee also requests comments on information received on attacks on indigenous peoples in land reclamation processes,’ he said.

Note 7: The 1976 Protocol to the International Covenant on Civil and Political Rights of 1966, which enables the Human Rights Committee to receive and consider complaints from individuals and groups, has been ratified by all Latin American States, except for Cuba (see official status of signatures and ratifications).

Note 8: The patience and perseverance of the affected Argentine communities are noteworthy: this sentence culminates a 36-year claim promoted by several indigenous communities in the province of Salta in Argentina, whose purpose was to obtain title to their territorial property. In 1991, the native communities formed the “Lhaka Honhat Association” and began to claim ancestral territories. Later, in 1998, they chose to expose the state before the Inter-American Commission on Human Rights (IACHR).

The IACHR issued its report on the merits in 2012, issuing a series of recommendations to Argentina. In view of the failure to comply with its recommendations, the IACHR referred the case to the Inter-American Court in February 2018, which issued its judgment in February 2020.  Among several points of interest developed by the inter-American judge in this judgment (whose comprehensive reading is recommended), the series of rights that are infringed when allowing activities such as cattle raising, illegal logging or fencing was very rigorously explained, the Court concluding that: 

“In the circumstances of the case, changes in the way of life of the communities, warned by both the State and the representatives, have been related to the interference in their territory, Indigenous peoples and activities outside their traditional customs. This interference, which was never consented to by the communities, but was framed in an injury to the free enjoyment of their ancestral territory, affected natural or environmental assets of that territory, The traditional way of feeding indigenous communities and their access to water. In this context, alterations to the indigenous way of life cannot be seen, as the State claims, as introduced by the communities themselves, as if it had been the result of a deliberate and voluntary determination. Thus, there has been an injury to cultural identity related to natural resources and food” (paragraph 284).

Note 9: On the extensive jurisprudence of the Inter-American Court on indigenous peoples, see this publication of the same Court entitled “Booklet of the jurisprudence of the Inter-American Court of Human Rights Num.11: Indigenous and Tribal Peoples”. In 2021, the Inter-American Commission on Human Rights (IACHR) published a report entitled “The right to self-determination of indigenous and tribal peoples”, recommended for reading: in its conclusion, it reads (paragraph 361) that:

“The recognition of the self-determination of indigenous and tribal peoples must be understood as a remedial measure against historical and contemporary violations of their rights as distinct collectives with their own cultures, social institutions, The European Union and its Member States have been excluded from the processes of State constitution and from the definition of economic, social and other State policies. This history of exclusion, discrimination and serious violations of human rights of these peoples must be recognized by States in order to take decisive measures to protect these peoples and their cultures, the life and integrity of their members, The United Nations Convention on the Rights of the Child”.

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Posted by Curso de Derecho Internacional.

CONTACT

Contact e-mail address: [email protected]

Nicolas Boeglin Professor of Public International Law City Rodrigo Facio Faculty of Law, University of Costa Rica