On 28 September 2022, the report of the UN Special Rapporteur on the Rights of Indigenous Peoples, following his on-site visit to Costa Rica at the end of 2021, was released. Special Rapporteurs on specific human rights issues are non-conventional mechanisms within the United Nations, and the one dedicated to examining the rights of indigenous peoples was established in 2001 (see official link).
The report on the Rights of Indigenous Peoples in Costa Rica is now available in the various official UN languages at this link.
It is noteworthy that the official delegate of Costa Rica indicated in his intervention (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”.
We do not have access to the Spanish version of what the representative of the Costa Rican State said, in order to be able to clarify possible doubts regarding the English translation made by the official interpreters of the United Nations.
On some preoccupying findings
Beyond the things one sometimes hears from a Costa Rican delegate in an international forum, a comprehensive and detailed reading of the report as such is suggested: indeed, it contains a great deal of very valuable data collected by this UN independent expert during his visit to Costa Rica.
By the time he concluded his visit in December 2021, he had already expressed some very preliminary concerns (see official press release at the end of his visit to Costa Rica, which was not widely reported in the Costa Rican press).
There are many issues in his report in which the Rapporteur highlights government initiatives and the erratic behaviour of the Costa Rican state when it comes to implementing them. Thus, the report states that:
“33. In 2016, Costa Rica launched the National Plan for the Recovery of Indigenous Territories led by the Institute for Rural Development. The Special Rapporteur notes that, although the plan promotes land titling, to date it has not resulted in any restitution. In the various meetings with indigenous peoples, the existence of several obstacles that prevent this plan from guaranteeing the effective, fair and equitable restitution of their territories was raised”.
Similarly, the report states:
“48. The social conflict has been exacerbated after more than 40 years of occupation of indigenous territories by non-indigenous people, without an effective state policy of land restitution, which has led to a situation of systematic violence by some farmers, particularly in the south (Cabagra, China Kichá, Salitre and Térraba).
49. Despite the follow-up to the early warnings and the international community’s continuous calls for the protection of the rights of indigenous peoples, including the precautionary measures imposed by the Inter-American Commission on Human Rights in favour of the Teribe (Brörán) and Bribri indigenous peoples of Salitre, attacks against indigenous peoples have not ceased. According to a report, a total of 86 acts of violence against indigenous peoples were documented in 2020”.
We recommend reading the entire document, which shows a very detailed analysis of the reality faced by Costa Rican indigenous communities: it is, in our opinion, a very well documented analysis by the Rapporteur and his team, who were able to meet with various state and non-state entities familiar with this reality during their visit.
On some of the recommendations made to Costa Rica
The conclusions at the end of the report are of great interest to social sectors and should be able to encourage reflection within some state entities. In the concluding part of the report, the Special Rapporteur states:
“91. The Special Rapporteur notes that the structural causes of violations of the rights of indigenous peoples are to be found in the lack of an adequate land restitution policy and a legal framework that ensures the recognition of indigenous peoples and their own authorities. Of particular preoccupation is the structural racism that permeates state institutions, particularly at the local level, the non-implementation of their economic, social and cultural rights and the lack of effective measures to protect human rights defenders”.
Among the numerous recommendations made to the Costa Rican state, and which should be of interest to various state entities, in paragraph 98, the Rapporteur recommends that Costa Rica:
“(f) Investigate, prosecute and condemn those responsible for attacks, including threats against indigenous leaders;
(g) Ensure the administrative and judicial investigation, prosecution and condemnation of those responsible for the alleged abuse of force by the police in March 2020 against indigenous land recuperators in China Kichá;
h) Provide adequate individual and collective reparation measures by the State for the indigenous victims, in particular the Bribri de Salitre and Brörán de Térraba indigenous peoples for the murders of indigenous leaders Sergio Rojas Ortiz and Jehry Rivera, including, but not limited to:
(i) Guarantees of non-repetition through preventive schemes and early warning with the participation of the Defensoría de los Habitantes;
ii) Measures of satisfaction such as public apologies;
i) Ratify the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean”.
The international instrument to which the Rapporteur refers in this point i) is better known as the Escazú Agreement (Note 1), which was signed in Costa Rica in March 2018. This treaty was recently the subject of a new ratification in 2022 (Chile), following Argentina and Mexico (which ratified it in 2021). We had the opportunity to analyse the increasingly uncomfortable situation that each new accession to this cutting-edge regional agreement, adopted on Costa Rican soil, means for Costa Rica: see our brief note on the subject entitled “Escazú Agreement: Chile is now officially the 13th State Party. This is yet another of the many appeals already made to Costa Rica from the international ambit, and if followed, it would allow Costa Rica to show itself to be more consistent and coherent with the international image it intends to project to the world in the area of human rights.
On the official apology recommended by the Special Rapporteur in his report
It should be recalled that the violent actions suffered by indigenous leaders in Costa Rica, and the fact that two of them lost their lives in less than a year (Sergio Rojas, March 2019 and Jerhy Rivera, February 2020) without the judicial authorities having condemned those responsible for these two serious acts, place Costa Rica in a rather unusual situation, particularly from an international human rights perspective (Note 2).
At the same time, an outrageous climate of impunity persists, which has a chilling 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 UN Rapporteur to the Costa Rican State takes on much greater relevance.
In June 2020, another UN expert had stated in a press release (see text) that, in Costa Rica, impunity prevails in an extremely preoccupying way when it comes to indigenous victims:
“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 “dragging” experienced in the Legislative Assembly building in August 2010 by members of several Costa Rican indigenous communities, could also facilitate the dialogue process (see our brief note published on the 10th anniversary of this sad episode that marked, and continues to mark deeply, the Costa Rican indigenous communities).
Finally, in 2020, when analysing the processing by the Inter-American Commission on Human Rights (IACHR) of a petition by indigenous Térraba people in relation to the El Diquis hydroelectric project, we wrote in a brief note (see link) that:
“While the Costa Rican Electricity Institute (ICE) announced in 2018 that it was “closing” the PHDiquis (see note in Semanario Universidad), it never proceeded to carry out any consultation with the indigenous communities impacted by this megaproject. Nor has there been any public recognition of the State’s responsibility for disrespecting the rights of indigenous communities. The fact that ICE has withdrawn from this project for reasons unrelated to the claims of the indigenous populations does not mean that in the years prior to 2018, damage had not been caused to these communities, to the natural environment in which their culture is inscribed and to the spiritual value that some natural spaces have for them, which can now be assessed by the IACHR”.
In this regard, a previous report in 2011 by another UN expert entitled “The situation of indigenous peoples affected by the El Diquís hydroelectric project in Costa Rica” (see link) highlighted the shortcomings of the Costa Rican state when, this time, it comes to carrying out a mega-project that negatively impacts Costa Rican indigenous populations.
A recent decision related to a monoculture plantation in Paraguay by a conventional mechanism of the United Nations such as the Human Rights Committee (see text of the opinion of October 2021) should be of interest to some communities in Costa Rica that suffer negative impacts from monoculture plantations (in particular what can be read in paragraphs 8.6-8.8 of the aforementioned opinion). It is worth noting that this opinion is of interest to many other indigenous communities in Latin America that live in situations very similar to that of the courageous and persevering community of Campo Agua’ẽ, of the Ava Guaraní people.
In conclusion
This new report from the United Nations provides a very complete picture of the situation of total vulnerability and defencelessness of many indigenous communities in Costa Rica. By the date of this year 2022, which is the international commemoration of indigenous peoples, the United Nations office in Costa Rica had 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 Cabécar people it is 94%; in the Ngäbe people 87% and in the Brörán people 85%” (see one of the few articles in the Costa Rican press referring to this communiqué).
It should be borne in mind that this UN report was released after the Inter-American Court of Human Rights adopted a historic judgment against Argentina in 2020 (see the Lahka Honhat judgment), which expanded the scope of jurisprudence in this area in a remarkable way, particularly with regard to ESCR (Economic, Social, Cultural and Environmental Rights) (Note 3). The former President of this regional jurisdiction did not hesitate to write in his reasoned opinion that this judgment constitutes a true “milestone”:
“The Lhaka Honhat case represents a landmark in inter-American jurisprudence fundamentally for three reasons. Firstly, it is the first occasion on which the Inter-American Court has ruled autonomously on ESCR concerning indigenous peoples and communities. Secondly, unlike the precedents it has had the opportunity to hear, the Judgment declares the violation of four ESCR that can be derived from and protected by article 26 of the Pact of San José – the right to cultural identity, in relation to participation in cultural life, the right to a healthy environment, the right to food, and the right to water. Thirdly, the reparations ordered are focused in a differentiated manner, seeking to restore the violation of each of the social, cultural and environmental rights declared to have been violated in the Judgment” (see paragraph 4 of his vote, available afterwards the text of the judgment, page 2).
As is well known, the jurisprudence of the Inter-American Court of Human Rights does not limit itself to ordering measures to the incriminated State in a specific case, but calls upon the other States of the American hemisphere and invites them to remedy the inadequacies and gaps in their respective national legal systems: not remedying them constitutes a veiled invitation to international litigation before the organs of the Inter-American system.
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 will be able to inspire political decision-makers about the urgent need to gradually remedy the grave situation suffered by Costa Rica’s indigenous communities. The profound mistrust with which many of them live on a daily basis is an obstacle that must be overcome little by little: in this sense, this UN report offers valuable guidelines and tools to various Costa Rican state entities.
In addition, civil society organisations and the social movement in favour of 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 their benefit to indigenous communities, as this report forcefully details.
– Notes
Note 1: 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.), Acuerdo de Escazú: enfoque internacional, regional y nacional, Editorial Jusbaires, Buenos Aires, 2022, 670 pgs. Work available in full at this link.
Note 2: In relation to the murder of Sergio Rojas on 18 March 2019, we had the opportunity to examine the letters made public by the United Nations regarding the specific requirements requested of the Costa Rican authorities in relation to the murder of Sergio Rojas (see our note published on the website of the University of Costa Rica – UCR). Several of these UN requirements (which were requested in March 2019) sought to ensure that similar events would never happen again in Costa Rica (see UN document, page 5): on 24 February 2020, another indigenous leader in Salitre, Jerhy Rivera, was murdered.
Note 3: The patience and perseverance of the affected Argentinean communities is noteworthy: this ruling culminates a 36-year claim by several indigenous communities in the province of Salta in Argentina, whose objective was to obtain title to their land. In 1991, the indigenous communities formed the “Lhaka Honhat Association” and initiated their claim to their ancestral territories. Subsequently, in 1998, they decided to denounce 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. Given the failure to comply with its recommendations, the IACHR referred the case to the IACHR Court in February 2018, which issued its judgment in February 2020.
