In Costa Rica, there exists a long tradition of violating the rights of the Indigneous communities which continues to this day. Like many of its neighbors, the Costa Rican government has repeatedly failed to comply with its own national, as well as international, laws that are in force to protect and promote Indigenous cultures. This lack of political implementation has led to a rapid disintegration of Indigenous identity and could lead to the total disappearance of these cultures.
In 1973 the National Commission for Indigenous Affairs (CONAI) was established by the government. The law creating this institution covers a wide variety of subjects, ranging from general objectives like improving the social, economic and cultural situation to concrete objectives such as the establishment of new health centers. This decade also saw the creation of various reservations. The most important progress was the adoption of the Indigenous Act (Ley Indígena, No. 6172) in November 1977, further regulating Indigenous matters. Particularly important is article 1 of this Act, which states that the established reservations can only by diminished by adopting an explicit law. Despite this provision, the government of Costa Rica has violated this Act and decreased four reservations through decrees. For instance, the GuaymÌ de Conteburica reservation was established by Decree No. 8514-G and recognized by the Indigenous Act as containing 12,558 hectares. In 1982, Decree No. 13545 reduced the reservation by 648 hectares. The same kind of illegal acts took place with regard to the GuaymÌ de Abrojo Montezuma reservation (from 1,517 to 1,480 hectares), the Guatuso reservation (from 2,994 to 2,743 hectares), and the GuaymÌ de Cotobrus reservation (from 8,631 to 7,246 hectares). Not only has the government violated the Indigenous Act, but the government reports sent to the ILO, following the supervisory procedure of Convention 107, claimed that the Guatuso reservation consists of the original 2,994 hectares.
Article 2 of the Indigenous Act says that the transfer of land from non-Indigenous to Indigenous people will be free of charge. CONAI has the obligation to buy back the land to later give it to the Indigenous communities. However, CONAI has never received the necessary funding to perform this fundamental task. As a consequence, very little land is in the hands of Indigenous people. The ratification in 1993, and subsequent implementation in April 1994, of ILO Convention 169 has given Indigenous communities in Costa Rica a new instrument with which to fight for their rights.
It is important to note article 7 of the Costa Rican constitution, which declares that international treaties and conventions ratified by Costa Rica are of a higher authority than national law. This means that Convention 169 is applicable directly and must be recognized within the national legislation of Costa Rica. Despite Costa Rica's respect for international conventions, the nation seems to be having difficulty practicing what they preach. The right to consultation as established by Convention 169 is something that is still in its infancy in Costa Rica. An institutionalized consultation procedure does not exist. The government claims that the Mesa Nacional Indígena is the representative Indigenous organ being consulted by the government. However, the Mesa is neither representative nor an organ. The Mesa was created by the government as a response to demands from the Indigenous Fund. In 1992 the Latin American and Iberian government leaders met in Santiago de Chile and established the Indigenous Fund. The objective of this Fund was to improve the situation of the Indigenous peoples in Latin America by providing technical assistance and funding for various development projects. As a requisite to receive money from this Fund, there must be a national Indigenous organization that represents the Indigenous peoples. As there was no such organization in Costa Rica, the government created the Mesa in 1993. No Indigenous leaders seem to know what the Mesa does, and the people that constitute it can in no way be regarded as real representatives of the Indigenous communities within Costa Rica. This Mesa does not even have an office, and it lacks any guiding principals necessary to call it an organ.
It is difficult for the customs and customary laws of Indigenous peoples to be recognized as applicable within the implementation of national law. One only need look at the way that the Indigenous communities are forced to organize to be able to advocate their rights. For any Indigenous organization to be recognized by the government, it has to be formed in accordance with the governmental Communal Development Associations. The government has set up these Associations on every reservation. The rules of these Associations require the Indigenous peoples to organize themselves in a way that is foreign to them. Organizations that refuse to comply with these procedures and try to operate independently of the Associations are not recognized by the government.
The most strident problem facing Indian communities is the rapid encroachment of non-Indigenous people on large areas of Indigenous lands. Although the government recognizes this fact, it has done very little to remedy this predicament. The Indigenous Act contains provisions regarding the removal of these non-Indigenous persons. Those persons that were already situated in areas that later were proclaimed reservations shall be moved and properly compensated. Non-Indigenous people that have penetrated the reservations after the adoption of the Indigenous Act have no rights in this regard, and can be removed according to the Act. However this has not been enforced and non-Indigenous people continue to settle in Indigenous territory at an alarming rate. On some reservations more than 80% of the territory is in the hands of non-Indigenous people. In this regard the Costa Rican government has failed to implement Article 18 of ILO Convention 169, which states that "Adequate penalties shall be established by law for unauthorized intrusion upon, or use of, the lands of the peoples concerned, and governments shall take measures to present such offenses."
Indigenous peoples in Costa Rica cannot obtain agricultural credit because the lands belong to the community and there is no legal formula for providing guarantees on communal properties. This situation has been recognized by the Supreme Court of Justice. However nothing has been done to change this.
In examining Indigenous rights in the natural resources issue, we see that Costa Rica again fails to uphold the tenants of ILO Convention 169. The Mining Act says that the Legislative Assembly of Costa Rica decides on the granting of exploitation contracts to extract natural resources. There is no distinction between the reservations and the rest of Costa Rica. Because there exists no institutionalized and regulated consultation, Indigenous peoples have no say whatsoever about the exploitation of their territories. This is in direct opposition to Article 15 of Convention 169 which guarantees"... the right of these peoples to participate in the use, management and conservation of these resources..."
Health is one of the areas on which the biggest improvement has been reached. A number of new clinics have been built, although in most cases doctors are available only one or two days a week. The number of casualties as a consequence of diseases is still far higher than among the rest of the Costa Rican population. Severe diarrhea leading to dehydration is the principal cause of death among Indigenous children. Although the situation is improving, it is still very difficult to get the necessary medical attention in remote areas of the country.
On the education front, the situation is twofold. On the one hand quite a few new elementary schools have been constructed in the last couple of years. There are only two high schools on Indigenous territory, and both have been built with the help of foreign cooperation. On the other hand, there is hardly any attention being paid to the development of bilingual education. In 1995 the Department for Indigenous Education (DEI) was created by Decree No. 23489. Because it was created by a Decree and not by an explicit law, the next administration has the ability to dissolve the Department. This unstable future is reflected in its administration. There is almost no budget directed towards the DEI making it impossible to develop a long-term strategy. Without a long-term policy, the important issues cannot be confronted. For instance, there is no bilingual educational material at the high school level and the material for the elementary level is very outdated. There is no funding to provide sufficient scholarships for Indigenous students. Another problem is the lack of Indigenous teachers. It is very important that the Indigenous children are taught by Indigenous teachers as they are best able to transmit the traditional values and culture.
The rise of the Indigenous movement in Costa Rica is a fairly recent development. The battle, at the end of the 1980's, by the GuaymÌes to be recognized as Costa Rican citizens and not as foreigners, led to the establishment of a growing number of Indigenous non-governmental organizations (NGO's). These organizations have been founded to ameliorate the social and economic crisis within Indigenous communities. They work to achieve a greater degree of autonomy and to pressure the government to comply with the national and international legislation. The Indigenous communities in Costa Rica are steadily becoming more vocal in protecting their rights, denouncing violations and abuses and demanding the recovery of their lands. This growing awareness of their own rights has brought with it a new phase in the Indigenous struggle.
By the end of 1996 the government had been sued twice in light of its failure to execute the legislation in practice. On the 3 of October, José Dualok Rojas Ortiz, a Bribri and president of the cultural association Sejekto (the Voice of the Indian) sued the Costa Rican state for not having complied with its obligations under the Indigenous Act and the ratification of Convention 169. The Supreme Court of Justice is examining the case.
Two and a half months later, four Malekus filed a law suit against the state for violating the Indigenous Act. With help from the NGO Fundación Iriria Tsochok (Foundation for the Defense of the Land) an extensive one year research project has been undertaken to collect the necessary geographical and topographical data. This study has produced a voluminous charge with over two hundred pages of empirical evidence. The indictment concerns the illegal reduction of the Guatuso reservation and demands the restitution of the 250 hectares. Even the little land that was assigned to the Malekus after the reduction is almost completely (90%) in the hands of non-Indigenous persons. The Supreme Court is also investigating this case.
Currently the Legislative Assembly is working on a draft Act that will effectively replace the Indigenous Act and all the Decrees that have been enacted. This drafting process has been progressive in a couple of ways. In compliance with Convention 169, the Indigenous leaders have been consulted, they have had the opportunity to give their opinion and input on what to include in this draft. The draft committee has also recognized the need to rename the reservations as territories, since the first term implies isolation. The draft is very extensive, contains fifty-one articles and deals with all the relevant issues. Despite the fact that it has been the subject of discussion for the past couple of years, it is unfortunately that this draft, with its positive agenda, has still not been adopted by the Assembly. Until the Costa Rican government legally accepts the draft there is no real change taking place for Indigenous peoples. Critics believe that the government should be focusing on executing the existing legislation before adopting a new instrument with even more obligations.
In spite of its progressive legislation, there remains a lot to be done in the field of Indigenous rights in Costa Rica. The lack of land in the hand of Indigenous people continues to be one of the most serious problem facing Indian communities. The government has shown that it is not willing to take real measures to protect and promote Indigenous cultures. It is striking to see how many Costa Ricans think that within a couple of years there will no more puros indÌgenas and that it is therefore a waist of time and money trying to avoid this. CONAI is a good example of the government's failure to developed the necessary multisectorial policy to give effective protection. Although according to its constituting treaty CONAI is responsible for all government policy regarding Indigenous peoples, it is in dire need of funding and has been subject to the usual government neglect. The first Convention 169 government report sent to the ILO at the end of last year was written without consulting CONAI or the DEI.
However, the Indigenous people in Costa Rica have demonstrated to their own government and the international community that they are determined to fight for their autonomy, their land rights and their rights as peoples. Although it has yet to be thoroughly implemented into public policy and practice in Costa Rica, Convention 169 has been an effective tool in increasing Indigenous peoples awareness of their own rights under international law. It has also helped to increase awareness among non-Indigenous people. This has been proven by a growing jurisprudence in Costa Rica that recognizes the principles of Convention 169 as fundamental human rights of Indigenous peoples. Costa Rica can move beyond the other Latin American countries that have impressive bodies of laws regarding Indigenous peoples merely to appease the international community yet continually fail to abide by their own legislation. The Costa Rican government must actualize all the articles of ILO Convention 169 to prove to the international community that it is serious about its commitment to upholding the rights of Indigenous peoples.
Thanks to Jorge Dandler, Jose Dualok Rojas Ortiz and Ali Garcia.
For more information please contact:
Fundacion Iriria Tsochok,
Apdo. Postal 555-2100, Costa Rica,
tel. (506) 225-5091/ fax. (506) 253-6446
Asociación Cultural Sejekto de Costa Rica,
Moravia, San Jose, Costa Rica,
tel. & fax. (506) 257-5157
Gerard Schulting did an internship at SAIIC, followed by one at CODEHUCA, the Central American Human Rights Commission, in San José, Costa Rica, where he did research for this article.