Regarding a law project “for the recognition and protection of human rights defenders and defenders of the environment” (file 23.588)
Regarding a law project “for the recognition and protection of human rights defenders and defenders of the environment” (file 23.588)
We share the following article written by Nicolás Boeglin, professor of law at the UCR, on file 23.588.
In the Official Gazette of Costa Rica of March 30, 2023, Bill 23.588 was published (see link, on pp. 2-7): it is called “Law for the recognition and protection of human rights defenders and environmental defenders”.
Since this is a specific area in which several notable advances in public international law have been recorded (both at the level of declarations and normative instruments – whether universal or regional in nature – as well as at the level of the jurisprudence of the Inter-American Court of Human Rights), it would have been expected to see them incorporated in a project of law of this nature: this is not the case. In fact, a detailed reading of this text reveals several serious shortcomings and omissions that show the haste with which it was drafted, particularly in relation to “environmental defenders“: we will detail some of these gaps in the following lines.
These omissions translate the rather peculiar way in which some draft law proposals in “express” mode.
What happened with the bill 23,588 should not be considered as an isolated event: as has become customary with the Legislative Assembly in recent times, some bills seem to be formulated in such a hasty manner that they are drafted without further consultation with entities involved in the field they are intended to regulate.
A previous consultation that was done or … not done?
Logic indicates that before drafting the text of a future bill, whatever the scope of the latter, there is a prior consultation phase.
It seems that either it was not done, or it was done with such a small group of entities dedicated to this subject and of professionals knowledgeable in this area that very few know who they are.
Given the broad and complex problems to which the bill 23.588 is intended to provide an answer, it raises very valid questions:
- no consultation has been made, or;
- to a very small group of entities and individuals, or else;
- that such was the haste to present it that what we consider to be the basic stages required by any bill prior to its formulation were skipped.
This consultation to which we refer would have undoubtedly allowed us to give this proposal a much more comprehensive approach and cover the many different aspects of the problem to be solved through new legislation: from social organizations, from judges and professionals in law and other disciplines, from legal advisors who often work with the Costa Rican environmental sector, from research centers and academia, from the experience already existing in other latitudes, from the many publications and existing reports, the inputs provided would have been of great help.
It is noteworthy that since 2015, a bill 19.610 (see text) that did give rise to consultations has been patiently waiting for deputies to process it: it seeks simply to reform the criminal code to include acts that attack human rights activists and punish their perpetrators.
As a suggestion we can make to the current legislators of Costa Rica or of any other State seeking to protect people who defend the environment by means of a new law, since April 21 the Latin American and Caribbean region has had a collegiate body made up of experts, who could also be consulted with a view to formulating the best content for a future law: in fact, the seven members of the Implementation Support and Monitoring Committee were appointed within the framework of COP2 of the Escazú Agreement held in Argentina. We had the opportunity to briefly analyze the results of COP2: see link to our article published in the specialized site Actualidad Ambiental. In the case of the Costa Rican candidate, it should be noted that she was appointed by the other States Parties to integrate this same committee (in this regard, see OjoalClima’s note of 1/5/2023, the only reference we found in the Costa Rican media welcoming her appointment).
Some basic aspects of form
From its title itself, it is evident that the authors of Bill 23,588 ignore several things that, personally, we consider quite basic, and which we will detail below.
Since 1995, Costa Rican legislation does not use the term “medio ambiente” used in other latitudes, but rather “ambiente“, as the LOA itself (and not LOMA) for the acronym of: Ley Orgánica del Ambiente (see full text). If the planet is one, if the Earth is one, there is no reason to use the term “medio” when referring to the environment, which is used (for example) by our colleagues in Spain. It is surprising that the Costa Rican authors of this bill ignore the terms used in Costa Rica to refer to the “medio ambiente” in the same national legislation. For your information, the Political Constitution itself has had an article since 1994 that does not use the term “medio ambiente” but reads as follows: “Artículo 50. Toda persona tiene derecho a un ambiente sano y ecológicamente equilibrado”. (Article 50. Every person has the right to a healthy and ecologically balanced environment).
Also for your information, since 2018 there is a regional treaty that seeks to protect those who defend the environment (using the term “ambiente” or “ambientales” and not “medio ambiente” or “medio ambientales“…). This legal instrument enshrines a very precise expression that encompasses human rights defenders and environmental defenders: it is the expression “defensores de los derechos humanos en asuntos ambientales” (human rights defenders in environmental matters), as we find it embodied in Article 9 of the Escazú Agreement (see full text). Incidentally, the total omission of any reference to the Escazú Agreement by the Costa Rican authors of this bill is more than striking. This omission confirms (for some of us) the suspicion we have: many in Costa Rica, from the Legislative Assembly itself (but also from the Executive Branch and from other spaces), give their opinion on the Escazú Agreement – usually against it – without even having read it.
It should be pointed out that the original proposal to incorporate in the future Escazú Agreement a specific provision on persons who defend the environment was the result of a joint proposal by Chile, Costa Rica, Panama, Paraguay and Peru (see text). Mentioning it in a bill such as 23.588 would allow honoring this courageous initiative that Costa Rica successfully achieved with the other four States: thus making the Escazú Agreement the first treaty worldwide to be interested in specifically protecting those who defend the environment, many times from their small communities.
In order to better understand the problems faced by human rights defenders in environmental issues, we also refer to the report of the First Forum held in November 2022 in Quito, Ecuador, under the auspices of ECLAC (see text). A second, very similar forum will be held in Panama at the end of September 2023.
Given the lack of knowledge on the subject, it is very likely that the authors of this bill are also unaware that the Escazú Agreement has an “Implementation Guide“, formally presented in April 2022 by ECLAC (available here).
The protection of environmental defenders is an extremely complex and critical matter, and requires a series of actions by the State in order to be effective. It is recommended that the authors of Bill 23.588 read in particular what the Guide establishes with regard to the implementation of Article 9 on environmental defenders (pp.145-52): in fact, when comparing what we find on pp.145-152 with the operative part of Bill 23.588, the serious gaps and omissions contained in this bill become evident.
Of some substantive aspects that do not exist in the draft law
In the case of Bill 23,588, nothing appears about the criminal actions for alleged defamation – accompanied by civil actions for damages in the millions of dollars – which time and again end up being dismissed or filed by the Costa Rican criminal courts. A reform to the penal code would allow that they cannot be used so easily. These criminal actions are filed with a clear veiled intention: to instill fear in a person in Costa Rica, in his or her closest environment, and to harm his or her defense and denunciation work during the years that the procedure lasts before the Costa Rican judicial system (Note 1). The Anglo-Saxon doctrine refers to this type of lawsuits as “SLAPP” for its acronym in English: “Strategic Legal Actions Against Public Participation” (Note 2). In Costa Rica, the controversy surrounding a mining project of the Canadian company Infinito Gold led to the filing of five such lawsuits in 2010 (Note 3).
Closely related to the omission detected above, nothing appears in this bill 23.588 about the guarantees to freedom of expression that are extended to environmental defenders and to all human rights defenders in their work: in this regard, in a 2022 sentence of the Inter-American Court of Human Rights on the criminal actions suffered by a renowned Chilean environmentalist, we read (in its paragraph 100) something that must have inspired the authors of this bill 23.588:
By the way, the expression “participación ciudadana en materia ambiental” (citizen participation in environmental matters), which exists in countless regulations in Costa Rica and in sentences of the Constitutional Chamber (see for example this sentence of 2012, and the developments that it contains in paragraph V entitled “On citizen participation in environmental matters“), constitutes a solid basis for establishing the necessary protection of those who defend the environment. Since 1995, the same Organic Law of the Environment (see text) in its article 6 establishes that:
The Inter-American Court of Human Rights itself has specified the scope of this true right in its advisory opinion OC-23 of 2017, released in 2018 (see text), in particular paragraphs 226-232). Despite its importance, the expression “citizen participation in environmental matters” does not find further reference in the draft law 23.588. This omission seems to us to be quite remarkable, so we would like to raise the following question: do the authors of bill 23,588 have some kind of problem with citizen participation in environmental matters ? (Note 4).
Nor does anything appear in Bill 23.588 about the imperative need to provide the Costa Rican State with a highly specialized body of investigators to duly investigate events in which attempts are made against the lives of people who speak out on environmental issues in Costa Rica. The outrageous impunity that surrounds a very long series of murders or threats against people who defend the environment in Costa Rica is evidence that the state apparatus does not know (or… does not want to know?) how to investigate these types of events.
Thus, for example, reading the very complete report submitted on the murder of Berta Cáceres in 2016 in Honduras (see full text of the 2017 GAIPE report) reinforces the idea of having highly experienced investigators to elucidate cases similar to that of this renowned Lenca leader opposed to the Agua Zarca hydroelectric project, and to unmask the (failed) cover-up strategy initially attempted by the Honduran judicial authorities to disguise the real reasons behind her murder.
To cover up the real perpetrators and masterminds of the murder of an environmental leader (or the perpetrators of the threats received by this person while he is still alive)? It is often a temptation for some state authorities, particularly when a state is seen to be acting in total harmony with a company in charge of a megaproject. In many cases, the strange sense of state/corporate unison is shared by many environmental activists in Latin America and the world at large. In Costa Rica, in the case of a Canadian company’s mining project declared by the Executive Branch in October 2008 to be of “national convenience“, a newspaper headline chose to use the word “collusion” between the Costa Rican State and the Canadian company Infinito Gold (see press release). In 2021, we allowed ourselves to use the expression “shameless symbiosis” between the State and the company, in connection with what we called the “Crucitas affair” (Note 5).
Nor does this bill contain any provision on the need to criminalize incitement to hatred against environmentalists: in this regard, a recent case against environmentalists of the Costa Rican South Caribbean (see SurcosDigital article) has not resulted in any reprimand by the Board of the Legislative Assembly against the deputy who called them “terrorists” during a hearing held in the same Legislative Assembly. With another type of expressions, in October 2010, the president of Costa Rica also considered it useful and opportune to publicly attack the environmentalists (see speech from min 25:00 contained in the documentary “El Oro de los Tontos“), without having apologized or rectified the content of her words to date (or explained what suddenly caused so much anger on her part against the Costa Rican environmental sector…).
So that the authors of this bill, apparently unfamiliar with the problem, may be more aware of the range of “techniques” used to intimidate a group of people who are clamoring for their rights, ranging from threats and intimidation of all kinds, to attempts at stigmatization and smear campaigns, We refer you to this report by the NGO Amnesty International and this other report by the IUCN (International Union for Conservation of Nature) on the rights of people who defend the environment. You can usefully supplement your knowledge with this 2019 report of the Inter-American Commission on Human Rights entitled “Business and Human Rights: Inter-American Standards” (in particular pp. 118-129 and 156-172). By carefully reading these three documents, we are sure you will become aware of the following fact: the Ombudsman’s Office is not the most appropriate state entity in Costa Rica to effectively protect human rights defenders in environmental matters, as this bill erroneously intends to do.
The mechanics probably followed in arriving at this bill
The justification of Bill 23,588 denotes a profound ignorance of the subject matter of this bill. It is presented in a quite original way, since it does not refer at any time to the principles of environmental law in force in Costa Rica and to the same regulations existing since 1995.
We will therefore try to provide an explanation that will allow us to understand how it was possible to arrive at this bill with such a formulation and wording.
Apparently, given very little time to elaborate it, a 2016 model text suggested in a fascicle of an international meeting sponsored by the United Nations (Model Law for the Recognition and Protection of Human Rights Defenders” – see full text and quoted on page 1) was used and then its scope was hastily extended to persons “defending the environment”, with the corresponding additions that we find in articles 1 to 21 of the operative part as well as in articles 22 (reform to the Law that creates the Ombudsman’s Office) and 23 (reform to the Penal Code).
In contrast to what Article 3 proposes in a rather restrictive manner in terms of definitions, we refer to what the Inter-American Court of Human Rights has ruled on the definition of persons engaged in environmental defense:
A simple reading of the aforementioned Article 9 of the Escazú Agreement (see link to its text) would also have helped the authors of this bill to use the modern terms used to define a human rights defender in environmental matters.
Of some notable omissions regarding murders of environmentalists in Costa Rica
Incidentally, we find in the justification of this bill a citation to the case of Jeanette Kawas Fernandez v. Honduras, an environmentalist murdered in February 1995 in Honduras, and whose murder led to an important ruling by the Inter-American Court of Human Rights in April 2009 (see full text). Strangely, all reference is omitted to the fact that in December 1994 and February 1995 the lifeless bodies of four Costa Rican environmentalists were found in the Costa Rican capital: three in a burned house in Moravia and the body of the fourth member in a park in La Uruca. The so-called “AECO case” never led to any sanction. In 1999, the Attorney General’s Office (PGR) considered – in a way that seems to us highly questionable and questioned – that:
- “According to the autopsies performed and the death investigations of Oscar Fallas Baldí, María del Mar Cordero Fernández and Jaime Bustamante Montaño, their death was due to an accidental fire.
- – According to the autopsy and investigation of the death of David Maradiaga Cruz, his death was due to natural causes“.
(see full text of the PGR report – conclusions -).
Almost 30 years after these events occurred, the Costa Rican State has not wanted to carry out an investigation into these four deaths that would allow the identification and punishment of the perpetrators of these four murders, with most likely two types of perpetrators: the perpetrators and the masterminds, the former being commanded by economic sectors affected by the work of denunciation of these environmentalists.
Every December, some academics and activists seek to keep alive the memory of these four deaths that officially the Costa Rican State considers, for three of them, “accidental” and the fourth as “natural“: see for example this article by our colleague Mauricio Alvarez and the publication presented in December 2020 on the long list of people who, in addition to the four aforementioned environmentalists, have lost their lives in Costa Rica in defense of the environment and entitled: “A memory that becomes a struggle: 30 years of criminalization of the environmental movement in Costa Rica“. Incidentally, no mention is made of this valuable compilation presented in 2020, which could be very useful when thinking about the elaboration of effective regulations to protect those who defend the environment in Costa Rica.
Not including any reference to the painful AECO case turns out to be an omission that adds to the omission of another case, much more recent: indeed, we find no mention in the bill 23.588 to the murder occurred on May 31, 2013 in Moin Beach of Jairo Mora Sandoval, which shook the entire Costa Rican society and international public opinion. The investigation conducted by the authorities was so deficient that a court opted in 2015 to acquit the suspects (see press release), causing the deep indignation of several NGOs (see collective letter). Just last May 31, 2023, the 10 years of this vile murder were commemorated: see the only note published in the Costa Rican press about it (Semanario Universidad). The multiple questions that we raised on the commemoration of the 5th anniversary of his death persist in time without further answers.
The official thesis, announced by the then vice-president Alfio Piva on CNN (see véase video) and without any police investigation, according to which only egg-men and drug traffickers could have had an interest in physically eliminating Jairo Mora in Moin Beach on that fateful May 31, did not convince us at the time: 10 years later, it still does not convince many in Costa Rica. Incidentally, these statements on CNN led an outraged congressman to express that:
The omission of any reference to the case of Jairo Mora seems to confirm once again the lack of knowledge on the part of the authors of Bill 23.588 regarding what environmental defenders have experienced in Costa Rica. In particular, it is surprising that none of the recommendations made in his report by the United Nations Special Rapporteur on Environment and Human Rights following his visit to Costa Rica are mentioned (points 54-57 on the case of Jairo Mora Sandoval and the more general recommendations made to Costa Rica in points 67-68). Since the content of this valuable report has been available for many years to all those interested in the protection of environmental defenders in Costa Rica, we allow ourselves to reproduce what is read in the report A/HRC/25/53Add.1 (which was submitted to the United Nations in 2014) in its point 67, and which could usefully inspire the authors of the bill 23.588:
Since 2014, this recommendation (as well as many others) has not found an echo in the Costa Rican state apparatus. Given the omissions of all kinds that are increasing as one reads this bill, we allow ourselves to raise the following questions: could it be that the authors of this bill are unaware that in 2014, a report on the visit made by the Independent Expert on Human Rights and Environment was presented at the United Nations? If so, are they unaware of the various conclusions and recommendations made to Costa Rica since 2014? If this is the case, we are not facing a bill that really seeks to protect someone in particular in Costa Rica, but something that resembles a simple maneuver of another kind.
It is noteworthy that despite these striking gaps, the murders of two indigenous leaders, Sergio Rojas and Jerhy Rivera, which occurred in Salitre in March 2019 and February 2020, are cited as the only recorded cases in Costa Rica: in this regard, it should be noted that the dramatic problem faced by indigenous peoples in Costa Rica when they are stripped of their rights over their own territories is much more complex and would merit a particular legislation for the protection of their community leaders in their territories (as well as outside them). A report from the highest instance of the University of Costa Rica (UCR) detailed this in 2017 (see report). Incidentally, in his 2022 report that we had the opportunity to comment on (Note 6), the UN Special Rapporteur on the Rights of Indigenous Peoples, following his visit to Costa Rica, suggested to the Costa Rican State to formally present a public apology to the indigenous communities: a recommendation that could usefully be materialized by the Costa Rican Legislative Assembly through a pronouncement – and that to date has not been done.
To the previous suggestion we would like to add another: we recommend that when the Legislative Assembly restarts (someday) the proposed law on autonomy of indigenous territories (filed without a vote in August 2020, resulting in a rather shameful performance of the same Legislative Assembly called since then by the indigenous communities “la arrastrada“), legal measures to protect indigenous leaders who defend the rights of their communities and prevent acts of intimidation against them should be duly incorporated. We had the opportunity in 2020, commemorating the 10th anniversary of that sad night, to analyze the historical debt that Costa Rica accumulates with the rights of indigenous populations. A recent and very complete article published in 2021 in Spain entitled “The story behind the death of Sergio Rojas” (see link) details the complexity of the situation of violence that Costa Rican indigenous people live daily in the Salitre region: to date, the Costa Rican State has not punished anyone for the murder of Sergio Rojas, a recognized indigenous leader, which occurred in March 2019 and which led the United Nations to urge Costa Rica to be much more attentive to the climate of violence against threatened indigenous leaders (Note 7). In September 2020, the Public Prosecutor’s Office attempted to file this case (see press release), which was rejected by a court of justice in January 2021 (see press release).
Finally, the absence in this bill 23.588 of any reference to mechanisms implemented at the national level by some States such as in Peru (see for example the protection mechanism elaborated in 2021 with the creation of a Functional Unit for Environmental Crimes, UNIDA, and a recent analysis two years after its creation) or else in Mexico (see the mechanism created that can be reviewed on pp. 159-181 of this publication of the Mexican Commission for the Defense and Protection of Human Rights and its reform adopted in 2022 by Congress) confirms what every parliamentary advisor should know: haste is anything but good company when drafting a text.
Such a poor justification of a bill, lacking so many basic elements, allows us to affirm that it is absolutely fallacious to maintain, as we read, that this bill “seeks to constitute itself as an instrument of the Costa Rican legal system to protect and recognize the fundamental rights of human rights defenders and environmental defenders, based on the standards dictated by international regulations, declarations and jurisprudence on the matter“.
Additionally, such disconcerting omissions and surprising gaps in relation to the progress that has been made since the Escazú Agreement was adopted in March 2018, can only give rise to an operative part that maintains these characteristics, so from now on it is modestly suggested to the authors of this proposal the following:
- to update their knowledge in the field;
- to seek advice from human rights groups and Costa Rican environmentalists who are aware of the limitations of the legal system and from people who have suffered intimidation, threats, attempts to discredit them, etc. in the last 30 years, and;
- to seek, from the academic sector or from any other sector, the way to ask for advice from the various experts and jurists that Costa Rica has in this precise matter.
All this in order to guarantee that a true proposal of regulations will be elaborated, protecting the rights of those who defend the environment in Costa Rica and this time, “based on the standards dictated by the regulations, declarations and international jurisprudence on the matter”.
As a small detail, which may explain the origin of such a sudden interest in this complex subject, we will conclude with the following idea: given that the Escazú Agreement was formally filed by the Legislative Assembly on February 1, 2023 and that this bill was circulated in the legislative stream on February 27, 2023, according to its technical file, Bill 23,588 may be understood as a (somewhat crude) attempt to remedy before the national and international public opinion the sadly irremediable.
This simple list of dates makes it much easier to understand the haste with which this bill 23.588 has been drafted.
Note 1: In the case of the Coco-Sardinal aqueduct in Guanacaste, seven people were subject to criminal actions of this type in 2008. In the case of the cement plant located in downtown San Rafael de Alajuela, there were several defendants in 2010-2011. We know of several people who denounced the pineapple expansion in Siquirres in the period 2007-2011 and who were also subject to criminal lawsuits accompanied by civil indemnification actions for millions of dollars. In the case of the so-called mining project located in the town of Las Crucitas, five people were sued in 2011 by the Canadian company Infinito Gold, of which two were deputies.
Note 2: These criminal actions seek above all to pressure and intimidate leaders of environmentalists, peasants, indigenous peoples or other social groups who speak out against the abuses to which they are subjected by companies and corporations. Su objetivo es claramente de carácter intimidatorio y en la doctrina anglosajona se denominan «SLAPP actions» (Strategic Legal Actions Against Public Participation). This valuable report entitled “Silencing Human Rights and Environmental Defenders: The overuse of Strategic Lawsuits against Public Participation (SLAPP) by Corporations” analyzes the impact of these criminal actions, while in this link you will find a report published in 2022 that includes part of the practice in Latin America, entitled “SLAPPS in Latin America“.
Nota 3: Se trata de demandas penales interpuestas por la empresa minera Infinito Gold contra dos diputados (véase nota de Panama América del 2011), así como contra un líder comunal y dos profesores universitarios. Regarding these last three lawsuits, in 2012 the defendants published an article entitled “Audiencias con el Infinito: ausencias…” in La Nación (see article in the 3/07/2012 edition and reprinted in Kioscos Ambientales) about strange recurring pathologies of the company’s lawyers tending to postpone, in three different criminal cases, the hearings before the judge scheduled to resolve these three lawsuits (which were finally dismissed). The program Era Verde of Channel 15 of the University of Costa Rica (UCR) dedicated two interesting broadcasts on the fate of these five lawsuits for alleged defamation filed by Infinito Gold (see video1 and video2), including interviews with the persons accused by the Canadian mining company.
Note 4: It is worth remembering that, in 2008, the only law approved by the Legislative Assembly in and vetoed by the Costa Rican Executive Power during the entire period 2006-2010, was the “Law to Strengthen the Mechanisms for Citizen Participation in Environmental Matters” (see full text accompanied by the text of the presidential veto of November 24, 2008). In the work report for the 2008 period of an influential business chamber, we read that: “Likewise, by the end of the year UCCAEP exerted the necessary pressure so that the President of the Republic would veto the Environmental Law. To this end, a series of opinion articles were published and several representatives were present in the media regarding the position of the business sector with respect to the Law approved by the Legislative Assembly” (see text of the UCCAEP report titled “Informe de Labores, March 2009”, p. 36).
Nota 5: Véase BOEGLIN N., “Infinito Gold contra Costa Rica. The recent ICSID arbitration award on the mining project located in Las Crucitas“, Portal de la Universidad de Costa Rica, edition of 06/15/2021, available here.
Note 6: See BOEGLIN N. “Costa Rica y pueblos indígenas: informe de Relator Especial exhibe graves y persistentes lagunas“, La Revista.cr, edition of 09/30/2022, available here. An earlier preliminary version was published on the website of the University of Costa Rica (UCR): “Informe del Relator Especial exhibe graves y persistentes lagunas del país“, Portal de la Universidad de Costa Rica, Sección Voz Experta, edition of 10/06/2022, available here.
Note 7: See in this regard our note BOEGLIN N., “Asesinato en Costa Rica del líder indígena Sergio Rojas: carta de Naciones Unidas hecha pública“, Red Internacional de Derechos Humanos (RIDH), 3 /06/2019. Full text available here.