Ratified treaties;¹ International case law²

Rights of indigenous and tribal peoples/ 85% reduction of the budget allocated to the National Commission for Indigenous Affairs/ Direct resolution of a dispute on the basis of international law

Following a drastic cut in the budget of the National Commission for Indigenous Affairs (CONAI), several members of the Commission instituted amparo proceedings requesting court protection of fundamental rights (recurso de amparo), alleging violation of the fundamental rights of indigenous populations.

The Supreme Court applied ILO Convention No. 169 to determine whether the reduction in the budget of the National Commission for Indigenous Affairs decreed by the Executive infringed the fundamental rights of the indigenous populations. That instrument requires every State which has ratified it to develop programmes to safeguard the institutions, property, labour, cultures and environment of indigenous peoples and stipulates that indigenous populations must be consulted before any specific decisions concerning them are taken.

On the basis of the general obligations laid down in the international Convention, the Court considered that the reduction of the budget of the CONAI unduly infringed the institution’s role of developing initiatives for the benefit of indigenous populations. This situation constituted a violation of the obligations entered into by the State of Costa Rica under ILO Convention No. 169 and thus violated the principle of good faith on the basis of which international agreements must be applied.

The Court also pointed out that the obligation enshrined in the Convention to consult indigenous populations before taking any specific measures concerning them had not been complied with in this instance.

The Court ruled as follows:

 “(…) Whereas it has been proved that the budget of the CONAI was substantially reduced from one year to the next, involving an undue restriction of its action as an institution or mechanism for the full development of the institutions and initiatives of the indigenous populations of our country;

Whereas, under Article 33 of ILO Convention No. 169, reducing the budget of the institution violates the principle of good faith with which international agreements must be applied;

Whereas an internal situation is in fact referred to justify non-compliance with the terms of the treaty, as is the case in this instance, despite the fact that special measures should be taken to safeguard, inter alia, the interests, labour and culture of the indigenous populations (Articles 26 and 27 of the Vienna Convention on the Law of Treaties);

Whereas over and above that general obligation concerning the interpretation of treaties ILO Convention No. 169 contains a specific obligation under Article 6, paragraph 2, to consult indigenous peoples in good faith;

Whereas that explicit consultation of the indigenous populations of the country on the reduction of the budget of the CONAI did not take place; (...)

Since Costa Rica has ratified that international instrument, the State of Costa Rica has undertaken to take special measures under the aforesaid Article 4. That commitment must be construed as an on-going activity aiming to protect those ethnic minority groups and, inter alia, their institutions, property, labour and environment from the influence of our population and its culture;

Those special measures must signify that it is prohibited for the State to abandon or strand a public institution whose purpose is to become a forum of discussion and initiative concerning the indigenous issues of the country.”

The Court furthermore referred to an opinion of the Inter-American Court of Human Rights (Advisory Opinion OC-2/82 of 24 September 1982), in which that Court referred to human rights treaties, stating the following:

 “(…) are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States.”

The Supreme Court stated in consequence that in the light of the rules laid down by ILO Convention No. 169 the reduction of the budget of the CONAI decreed by the Executive had infringed the obligations entered into by the State of Costa Rica to protect indigenous populations, and on those grounds the Court admitted the recurso de amparo and ordered the State to restore the budget situation of the CONAI. 

¹ ILO Convention on Indigenous and Tribal Peoples, 1989 (No. 169); Vienna Convention on the Law of Treaties, 1969.

² Inter-American Court of Human Rights.