The constitutionality and protection of this communal property was also reiterated by the Chamber in judgment No. 3468-02:
\"...Thus, the Chamber can start from the premise of the constitutional recognition made in favor of the cultural identity and protection of the indigenous peoples inhabiting the country. International Law, for its part, has been extensive in recognizing the rights of these communities, highlighting in that sense what is established in the following instruments: Universal Declaration of Human Rights (articles 1, 2.1, 7, 17.1 and 27), International Covenant on Civil and Political Rights (27), International Covenant on Economic, Social and Cultural Rights (1.1 and 2), American Declaration of the Rights and Duties of Man (2, 13 and 23), American Convention on Human Rights (24 and 26). Specifically, it has been the International Labor Organization that has generated the most specific regulation regarding the rights of indigenous peoples. In that sense, Conventions numbers 107 and 169 contain a detailed enumeration of rights recognized to these peoples. From Convention number 107, what is established in Part II (land ownership regime) is especially important for the case under study. From Convention 169, Part II also regulates matters pertaining to indigenous lands. Of special relevance to this case is what is stipulated by article 14 of said Convention:
\"Article 14
1. The right of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their traditional and subsistence activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.\"
In development of this provision, the Indigenous Law (number 6172 of November twenty-ninth, nineteen hundred and seventy-seven), orders in its article 9, regarding the lands belonging to the Boruca peoples, the following:
\"Article 9.- The lands belonging to the ITCO included in the demarcation of the indigenous reserves, and the Reserves of Boruca-Térraba, Ujarrás-Salitre-Cabagra, shall be transferred by that institution to the indigenous communities.\"
...V.- There is no doubt, therefore, that the Costa Rican State has broadly recognized the rights corresponding to the indigenous groups that inhabit the country. The same can be said regarding the specific right of communal property that corresponds to such communities by reason of their traditional belonging. The groups of persons belonging to the autochthonous communities have the right to live on the lands where they have historically been settled, and the State must fully guarantee the enjoyment of this fundamental right. To this end, national legislation provided for the registry transfer of such lands to the respective indigenous communities (Law number 6172, article 9, transcribed above), imposing on the Institute of Agrarian Development the duty to proceed to carry out all necessary procedures in order to guarantee the effective verification of said transfer...\"
Therefore, there is no reason whatsoever to reverse the criteria set forth. As has been clearly established, article 45 of the Political Constitution has not been violated, nor have the procedural violations claimed been committed, as was clearly established in judgment No. 836-98. Added to the above and following the same jurisprudential line, I also do not consider that article 3 of the Indigenous Law injures the freedom of commerce of indigenous persons, since, the legal nature of these lands being special due to their communal character in light of their protection for cultural reasons, the limitations imposed are neither unreasonable nor disproportionate. These are assets that, by provision of International Convention No. 169, must be protected to safeguard the cultures and spiritual values of the peoples concerned, in which the territory plays an essential collective role (see article 13). Hence, States are obliged to take the necessary measures to identify the lands that the peoples have traditionally occupied, and, at the same time, they must ensure the right of those peoples to participate in the use, administration, and conservation of said resources (see articles 14 and 15 of the cited Convention). The foregoing reasonably explains the reason why the reserves are destined exclusively for the use and domain of indigenous persons, which also implies unequal treatment with respect to non-indigenous persons, as the latter are not in the same legal situation. On the other hand, such restrictions on freedom of commerce operate only within the reserves for the reasons already stated, not in the rest of the national territory, where the indigenous person has full capacity to act and contract with indigenous or non-indigenous persons indifferently (such is the case of the restriction established in article 6 of the Indigenous Law, regarding which this Court in judgment No. 2843-99 resolved that it does not injure the freedom of commerce).
IV.- The claimants consider that articles 2 and 4 of the Indigenous Law injure the freedom of association, because in their view it forces them to form part of an organization in order to have legal capacity to acquire rights and contract obligations. Article 2 of the cited Law, in the relevant part, provides:
\"Indigenous communities have full legal capacity to acquire rights and contract obligations of any kind. They are not state entities.\"
For its part, article 4 states:
\"The reserves shall be governed by the indigenous persons in their traditional community structures or by the laws of the Republic that govern them, under the coordination and advisory of CONAI.
The population of each of the reserves constitutes a single community administered by a directive Council representative of the entire population; auxiliary committees shall depend on the principal council if the geographical extension warrants it.\"
With the cited regulation, the freedom of association of indigenous persons is not being injured; rather, it respects their hierarchical cultural community structures and delegates their organization to them, as well as recognizing their legal capacity to act. The norms do not impose any mandatory affiliation to have legal capacity as the claimants accuse, but rather, like any community, it must be organized by a common structure, which in no way entails an obligation of association as the amparo petitioners claim, or at least this is not inferred from the challenged norms. What must indeed be established is order, as all things require, since otherwise the exercise of other fundamental rights would be rendered nugatory. The Chamber, in judgment No. 2253-96, considered:
\"As the Chamber has already indicated, the Law of the Constitution establishes the responsibility of the State to provide indigenous peoples with adequate instruments that guarantee their right to participate in the making of decisions that affect them, and to organize themselves in elective institutions, administrative bodies, and other entities responsible for policies and programs that concern them (articles 6 and 33 of ILO Convention No. 169). It follows, then, that the legislator must design legal mechanisms that allow them to fully exercise that right. The norms in this matter must be oriented towards allowing broad and organized participation of the indigenous persons.\".
Thus, the State must guarantee the right of indigenous peoples to organize themselves and to participate in the making of decisions that affect them and that they have the right to constitute representative bodies, to participate in the election of the persons who will hold those positions, as part of the right to elect and be elected, which the Law of the Constitution establishes. These are the aspects on which the questioned norms are based, not on the individual capacity of each indigenous person to act. In fact, every indigenous person is a Costa Rican citizen, and thus can be registered and fully exercise their rights in Costa Rican territory. Of course, no fundamental right is absolute, so the exercise of rights encounters limitations, as occurs within the Indigenous Reserves. It is important to make the claimants see that the intention of the legislator with the challenged regulation is to comply with the international recognition that the State has subscribed to regarding International Conventions Numbers 107 and 169, whose sole intention is to recognize, protect, and vindicate the rights of indigenous peoples, respecting their own culture and structures, allowing them to develop it parallel to an ordinary civil society. That is the reason why the State vindicated their territories and has recognized their own organization in their communities. However, as already indicated, the challenged norms do not obligate indigenous persons to belong to those structures; they are free to do so, without this implying the loss of their rights as members of the indigenous community to which they belong.
The claimants accuse the violation of the principle of equality established in article 33 of the Political Constitution, article 2 of the American Declaration of the Rights and Duties of Man, article 26 of the International Covenant on Civil and Political Rights, and article 24 of the American Convention on Human Rights. However, they must bear in mind that, according to this principle, equal treatment must be given to equals, and different treatment to unequals; because the differences existing between subjects justify giving diverse treatment. These differences or particular situations constitute what the Chamber has termed in its reiterated jurisprudence (see judgment No. 337-91 of 14:56 hours on February 8, 1991), \"objective elements of differentiation\" that justify and warrant different treatment, known in constitutional doctrine as \"positive discrimination,\" which consists of giving special treatment to those persons or groups that find themselves in a situation of disadvantage with respect to others. This differentiated treatment seeks to compensate for that original situation of inequality and is oriented toward the achievement of \"real equality\" among subjects. It must be emphasized that this difference in treatment does not violate the principle of equality; rather, it results from its application and from an adequate interpretation of the Law of the Constitution. Various legal instruments exist aimed at promoting this real equality among subjects; among them is precisely the particular situation of the aboriginal peoples, who have traditionally been marginalized for historical, social, economic, and cultural reasons. They suffered the consequences of a society that did not understand or respect their differences. Faced with this situation, the international community felt the need to adopt measures in favor of indigenous peoples. Thus, Convention 169 of the International Labor Organization -ILO-, denominated \"Convention concerning Indigenous and Tribal Peoples in Independent Countries,\" incorporated into our legal system through Law No. 7316 of November 3, 1992, established the special protection of indigenous peoples and their culture. Said Convention, as we already indicated, attempts to endow indigenous peoples with protection measures, both at the individual and collective level. This Convention was the subject of a mandated legislative consultation, and on that occasion the Chamber considered:
«I.- The consulted Convention, within the general scope of the matters entrusted to the International Labor Organization (ILO), embodies in a legally enforceable international instrument a series of rights, liberties, and economic, social, and cultural conditions aimed, not only at strengthening the dignity and essential attributes of indigenous persons as human beings but also, primarily, at providing specific means so that their condition as human beings is fully realized in view of the depressed situation, sometimes even exploited and mistreated, in which the aboriginal peoples of many nations live; a situation that is not entirely foreign to the American Continent, where indigenous minorities, and sometimes majorities, find themselves practically marginalized from the predominant civilization, while, on the other hand, they suffer the depression and abandonment of their own traditions and cultures. Today, in the field of human rights, it is recognized, in summary:
a) That it is necessary to recognize for indigenous persons, in addition to the fullness of their rights and liberties as human beings, other legally guaranteed conditions through which the inequality and discrimination to which they are subjected can be compensated, with the purpose of guaranteeing their real and effective equality in all aspects of social life;
b) That it is also necessary to guarantee respect for and conservation of the historical and cultural values of indigenous populations, recognizing their peculiarity, with no other limitation than the need to preserve, at the same time, the dignity and fundamental values of every human being recognized today by the civilized world -which implies that respect for the traditions, language, religion, and in general culture of those peoples only admits as exceptions those necessary to eradicate practices universally considered inhuman, such as cannibalism-;
c) Without prejudice to the foregoing, the indigenous peoples must also be recognized the rights and means necessary to access, freely and with dignity, the spiritual and material benefits of the predominant civilization ...»
In light of the foregoing, no illegitimate discrimination is being produced, since different circumstances exist, such as those socially experienced by indigenous peoples, that motivate differentiated treatment, a special protection. This does not mean, as the claimants understand it, that they are being valued as persons with diminished capacity, but rather that the intent is to ensure respect for the community of their territories and their customs, granting them through law the necessary instruments to expel those who threaten their rights. On the other hand, the legal capacity of indigenous persons is not circumscribed to the indigenous reserves as the claimants attempt to make believe, but rather they maintain the personality and legal capacity that the civil laws of this country recognize for them. The questioned norms establish greater protection, but this has never been to the detriment of their civil rights as Costa Rican citizens. Consequently, the Indigenous Law per se does not establish a violation of the principle of equality nor does it grant undignified treatment.
The claimants alleged that article 5 of the Indigenous Law violates article 51 of the Political Constitution, as they indicate that it injures the right to inherit and prevents them from marrying a non-indigenous person, since after the death of the indigenous father or mother, these persons would have to be relocated or expelled from the lands for not being indigenous. The challenged article, in the relevant part, states:
\"In the case of non-indigenous persons who are owners or possessors in good faith within the indigenous reserves, the ITCO shall relocate them to other similar lands, if they so desire; if relocation is not possible or they do not accept the relocation, it shall expropriate them and indemnify them according to the procedures established in the Expropriations Law...\"
Before analyzing the allegations properly, it is important to note that the challenged norm was enacted with the purpose of granting a legal instrument to the indigenous communities to enforce respect for and recover their territories from non-indigenous persons who were usurping their lands; that was the legislator's intention. With that clarified, it is necessary to specify the definition of indigenous status established in the legislation. Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries provides in article 1:
1. This Convention applies to:
a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.\"
In accordance with the foregoing, the Indigenous Law in article 1 indicates:
\"Indigenous persons are those who constitute ethnic groups directly descended from pre-Columbian civilizations and who conserve their own identity...\"
Such conception of indigenous status and the challenged article 5 does not discriminate against the children of indigenous persons with non-indigenous persons, nor does it in any way prevent the marriage of an indigenous person with a non-indigenous person, nor does it necessarily imply the impossibility of inheriting for the children resulting from such marriage. Now then, the Chamber has indicated that it must be the autochthonous communities themselves who define who their members are, applying their own criteria and not those that the legislation follows for the rest of the citizens. Hence, those criteria and procedures must be respected for considering a person as a member of an indigenous community (see judgment No. 1786-93). Notwithstanding the respect for said procedures, their application cannot contravene human rights, as provided by the cited Convention No. 169 in article 8:
\"1. In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws.
2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system nor with internationally recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of this principle.\"
Therefore, it is not the challenged norm that injures the fundamental rights accused by the claimants, but potentially it could be the application of the communities' own law that is producing some discrimination that violates human rights. However, this would have to be the subject of a later analysis in a specific case and through the amparo channel, as it is not a matter for study in an unconstitutionality action.
\n\nIn view of all the foregoing considerations, and given that it was not established that the challenged regulations are contrary to the Political Constitution according to the parameters analyzed, my vote is to dismiss the action.Alejandro Batalla Bonilla.