Ratified treaties¹

Rights of indigenous and tribal peoples/ Right of ownership/ Direct resolution of a dispute on the basis of international law

The inhabitants of an indigenous reserve, the area of which had been reduced by decree, had instituted amparo proceedings requesting court protection of their fundamental rights (recurso de amparo), alleging violation of their territorial rights.

Having established that the Constitution contained only general provisions on ownership, the Constitutional Chamber of the Supreme Court relied on the provisions of ILO Convention No. 107 in order to determine whether the reduction of the size of the indigenous reserve decreed by the Executive violated the applicants’ fundamental rights. One of the obligations of the signatory States under that Convention is to adopt measures to protect the property of indigenous populations and to recognize their right of ownership over the lands they traditionally occupy.

The Court held that by reducing the size of the indigenous reserve the Executive Decree was incompatible with ILO Convention No. 107 and infringed the indigenous populations’ right of ownership, which was protected by the international instrument.

The Court ruled as follows:

“Decree No. 7962 provides in Article 1 that the boundaries of the Guatuso indigenous reserve have been modified. This reduction of the size of the Guatuso indigenous reserve by an area of approximately 250 hectares thus amends Decree No. 5904-G of 10 April 1996, a factor which infringes the prohibition laid down in Act No. 6172, which has been in force since 20 December 1977.

(…) When the decree in question was issued, Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations² was in effect and had been duly adopted by the Legislative Assembly of Costa Rica by virtue of Act No. 2330 of 9 April 1959. Pursuant to Article 7 of the Constitution, that Convention has higher authority than the statute and, consequently, than the reform decree. (...)

Article 11 of the Convention in question provides that it is the duty of the State to recognize the right of collective or individual ownership of the members of indigenous populations over the lands which they traditionally occupy (…) The State of Costa Rica recognized the territories traditionally occupied by those groups in Decree No. 5904-G by determining the boundaries of the Guatuso indigenous reserve. Any modification to the detriment of the original area would therefore contravene the provisions of Article 11 of the international Convention, which Costa Rica has ratified.”

In conclusion, the Supreme Court of Costa Rica applied ILO Convention No. 107, which recognizes the right of ownership of indigenous populations over the territory they traditionally occupy. On this basis, the Executive Decree reducing the size of the indigenous reserve was waived on grounds of the violation of a legal standard with higher authority and of infringement of the fundamental rights of the populations concerned.

¹ ILO Convention on Indigenous and Tribal Populations, 1957 (No. 107); International Covenant on Civil and Political Rights, 1966.

² Article 3 of Convention No. 107: “So long as the social, economic and cultural conditions of the populations concerned prevent them from enjoying the benefits of the general laws of the country to which they belong, special measures shall be adopted for the protection of the institutions, persons, property and labour of these populations.”