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*130060080007CO*
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Exp: 13-006008-0007-CO
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Res. Nº 2013-008252
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SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve\nhoras del veintiuno de junio de dos mil trece.
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Mandatory constitutional\nreview (consulta preceptiva de constitucionalidad) filed by the Directing Board of the\nLegislative Assembly regarding the bill processed under legislative file No.\n18.563, entitled \"Law for the Approval of the Agreement establishing an\nAssociation between Central America, on the one hand, and the European Union\nand its Member States, on the other; and the approval by the Republic of Costa\nRica of the Amendment to Article XXI of the Convention on International Trade\nin Endangered Species of Wild Fauna and Flora, adopted at an extraordinary\nmeeting of the Conference of the Parties in Gaborone, Botswana, on April 30,\n1983\".
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Whereas:
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1.- By\nofficial communication received at the Secretariat of the Chamber at 14:21 on\nMay 29, 2013, the Secretariat of the Directing Board of the Legislative\nAssembly submitted this consultation in compliance with the provisions of\nsubsection a) of Article 96 of the Law of Constitutional Jurisdiction (Ley de la\nJurisdicción Constitucional), together with a certified copy of the legislative\nfile.
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2.- By\nresolution issued at 15:14 on May 29, 2013, the legislative file was deemed\nreceived and this consultation was transferred, in accordance with the\ncorresponding rotation, to the Reporting Magistrate.
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3.- In this\nproceeding, the prescriptions of law have been observed, and this resolution is\nissued within the respective legal timeframe, which expires on June 29,\n2013.
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Drafted\nby the Magistrate Rueda Leal; and,
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Considering:
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I.- Object\nand admissibility of the consultation. This mandatory constitutional review\n(consulta preceptiva de constitucionalidad) is filed by the Directing Board of the\nLegislative Assembly in compliance with the provisions of Articles 10,\nsubsection b), of the Political Constitution and 96, subsection a), of the Law\nof Constitutional Jurisdiction. It concerns the bill entitled \"Law for\nthe Approval of the Agreement establishing an Association between Central\nAmerica, on the one hand, and the European Union and its Member States, on the\nother; and the approval by the Republic of Costa Rica of the Amendment to\nArticle XXI of the Convention on International Trade in Endangered Species of\nWild Fauna and Flora, adopted at an extraordinary meeting of the Conference of\nthe Parties in Gaborone, Botswana, on April 30, 1983\", which is being\nprocessed under legislative file No. 18.563. It is a bill for the approval of\ntwo international instruments and other provisions, which has already been\nsubmitted to a vote in the first debate (primer debate) at Plenary Session No. 12 of\nMay 21, 2013 (see folios 12,155 and 12,387 of the certified copy of\nlegislative file No. 18.563).
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II.-\nGeneral aspects of bill No. 18,563 \"Law for the Approval of the Agreement\nestablishing an Association between Central America, on the one hand, and the\nEuropean Union and its Member States, on the other; and the approval by the\nRepublic of Costa Rica of the Amendment to Article XXI of the Convention on\nInternational Trade in Endangered Species of Wild Fauna and Flora, adopted at\nan extraordinary meeting of the Conference of the Parties in Gaborone,\nBotswana, on April 30, 1983\". According to the\nstatement of motives (exposición de motivos) of the legislative file under study, this\nbill aims to approve 5 different articles. In the first numeral, the approval\nof the Association Agreement between Central America and the European Union is\nproperly provided for. This Association Agreement, in turn, is structured into\n5 main sections, as will be explained: the first and last sections contain\ntraditional provisions of Treaty Law. For instance, in Part I on \"General\nand Institutional Provisions\" (Articles 1 through 11), the principles,\nobjectives, and scope of application of the Agreement are set forth, as well as\nthe institutional framework for its implementation. In Part V on \"Final\nProvisions\" (Articles 352 through 363), the rules regarding entry\ninto force, duration, new accessions, contents that form part of the treaty\n(appendices, notes, joint declarations, and annexes), the impossibility of\napplying reservations or unilateral declarations, and authentic texts are\nestablished. Part II of the Agreement (Articles 12 through 23) is dedicated to\n\"Political Dialogue\" and replaces the former \"Political\nDialogue and Cooperation Agreement between the European Community and its\nMember States, on the one part, and the Republics of Costa Rica, El Salvador,\nGuatemala, Honduras, Nicaragua, and Panama, on the other part\", signed\nin the city of Rome on December 15, 2003, and ratified by Costa Rica through\nLaw number 8919 of December 16, 2010. This part of the Agreement aims to create\na privileged political association between both regions (Central America and\nthe European Union) based on common values and interests. Part III (Articles 24\nthrough 76) is dedicated to \"Cooperation,\" mainly aimed at\nenabling certain cooperation mechanisms necessary within the areas of interest\nidentified by mutual agreement between the Parties. Finally, Part IV, called \"Trade\"\n(Articles 77 through 351), contains elements typical of a free trade agreement,\nwhich, in 21 titles, regulates components such as \"trade in goods\"\n(GATT), \"trade in services\" (GATS), \"investment\" (current\npayments and capital movements -TRIMs-), \"intellectual property\"\n(TRIPS), and \"dispute settlement\" (DSU). This Part IV also includes\naspects relating to the interregional nature of the Agreement and other topics\nsuch as the Trade and Sustainable Development title, the one relating to Trade\nand Competition, and the annexed Protocol on Cultural Cooperation.
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In the second\narticle of the bill submitted for consultation, the approval of an Amendment to\nthe \"Convention on International Trade in Endangered Species of Wild\nFauna and Flora\" is provided for, as its ratification has been part\nof the political negotiation with the European Union. Costa Rica is already a\nParty to said Convention, and the Amendment is intended to allow the\nparticipation of regional blocs or supranational organizations (such as the EU)\nin said Convention, and not only States in their individual conception.
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In articles\nthree and four of the bill, a Land Border Posts Council (Consejo de Puestos\nFronterizos Terrestres) is expressly created and provided with the necessary\nfinancial resources, for which purpose an exit tax for land ports and a tax on\neach customs export declaration (likewise for land border posts) are\ncreated.
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Lastly, in the\nfifth ordinal, it is decided to assign the Ministry of Foreign Trade the\nrepresentation of the country before the Organization for Economic Cooperation\nand Development (OECD).
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III.-\nPreliminary matter. Firstly, it is necessary to recall the necessary\ndelimitation that must be made in this type of matter between aspects of\neconomic and socio-political opportunity or convenience, on the one hand, and\nquestions of constitutionality of these international instruments, on the\nother. In ruling number 2007-09469 of 10:00 a.m. on July 3, 2007, it was\nindicated: \"(...) this Constitutional Court, by the constitutional and\nlegal powers conferred upon it, which are summarized in the purpose or aim of\nguaranteeing the supremacy of the Constitution (Article 10 of the Constitution\nand 1 of the Law of Constitutional Jurisdiction), does not have jurisdiction\nto weigh the opportunity, convenience, or merit of a Free Trade\nAgreement. It is the constitutional bodies that are responsible for the\npolitical or governmental direction and the responsibility of drawing up and\nimplementing the main public social and economic policies that are primarily\ncalled upon to make that assessment. Thus, the Executive Branch in the strict\nsense -President and Minister of the sector-, prior to exercising the power\ncontained in Article 140, subsection 10), of the Constitution to conclude\npublic agreements and treaties, is the one that must carry out that analysis.\nSimilarly, the Legislative Assembly, in exercise of the legislative power\n-which resides in the people and is delegated to it through suffrage, Article\n105, paragraph 1, of the Constitution- is a body called upon, before exercising\nits competence under Article 121, subsection 4, to approve or disapprove public\nagreements or treaties, to assess the social, economic, and political\nopportunity and convenience of an instrument of that nature\n(...)
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In sum,\nthis Constitutional Court is responsible, solely and exclusively, in\nlight of the text of the Treaty signed by the Executive Branch, to determine\nif there exists any rule or provision that violates the Law of the\nConstitution, understood as the constitutional principles, values, precepts,\nand jurisprudence. This Court is constitutionally disqualified and\nprevented, by the very distribution of competences and organization provided\nfor by the Political Constitution, from determining whether an international\ninstrument is socially, economically, and politically convenient and opportune\nfor the country, given that the object of constitutional jurisdiction, as\nestablished by Article 1 of the law that regulates it, is \"(...) to\nguarantee the supremacy of constitutional norms and principles and of the\nInternational or Community Law in force in the Republic, their uniform\ninterpretation and application, as well as the fundamental rights and freedoms\nenshrined in the Constitution or in the international human rights instruments\nin force in Costa Rica\" (...) Therefore, in response to the consultations\npresented, only those aspects that may somehow generate doubts of\nconstitutionality will be analyzed, making it clear that everything related to\nthe convenience or otherwise of the approval, as well as the economic aspects\nsurrounding the Treaty, are not extremes that can be discussed through this\nchannel. On this point, this Chamber already ruled on the occasion of the\napproval of the Free Trade Agreement signed with Mexico (...)\" (the\nunderlining does not correspond to the original).
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The ruling\ncited above is fully applicable in this case, in which a pronouncement cannot\nbe issued beyond the control of constitutionality, without intervening in\naspects inherent to political opportunity.
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Having clarified\nthis point, the first step, for the purpose of resolving this consultation, is\nto verify the legislative procedures followed in the case at hand (sub lite), in\naccordance with what is indicated in Article 98 of the Law of Constitutional\nJurisdiction, which provides that the consultation must be made after the bill\nis approved in the first debate (primer debate) and before its final approval, and that,\nwhen resolving it, the Chamber will rule on any aspects or grounds it deems\nrelevant from a constitutional standpoint, but in a binding manner only\nregarding procedural matters (ordinal 101 of the Law of Constitutional\nJurisdiction). For the foregoing purposes, in the following considering clause,\na chronological summary of the legislative procedure of the bill under\nconsultation will be made.
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IV.- The\nprocessing of file No. 18,563 in the Legislative Assembly. The bill\nentitled \"Law for the Approval of the Agreement establishing an\nAssociation between Central America, on the one hand, and the European Union\nand its Member States, on the other; and the approval by the Republic of Costa\nRica of the Amendment to Article XXI of the Convention on International Trade\nin Endangered Species of Wild Fauna and Flora, adopted at an extraordinary\nmeeting of the Conference of the Parties in Gaborone, Botswana, on April 30,\n1983\", which is processed under legislative file No. 18.563, has\nfollowed the following path (íter):
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1) On June 29,\n2012, the Minister of Foreign Trade, Anabel González Campabadal, and the\nMinister of Foreign Affairs, Enrique Castillo Barrantes, signed the\n\"Agreement establishing an Association between Central America, on the\none hand, and the European Union and its Member States, on the other\"\n(see folios 453 and 454 of the certified copy of legislative file No.\n18.563).
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2) On September\n6, 2012, the Minister of the Presidency, Carlos Ricardo Benavides Jiménez,\nsubmitted to the Legislative Assembly the bill entitled \"Law for the\nApproval of the Agreement establishing an Association between Central America,\non the one hand, and the European Union and its Member States, on the other;\nand the approval by the Republic of Costa Rica of the Amendment to Article XXI\nof the Convention on International Trade in Endangered Species of Wild Fauna\nand Flora, adopted at an extraordinary meeting of the Conference of the Parties\nin Gaborone, Botswana, on April 30, 1983\", for it to be given the\ncustomary procedure (trámite de rigor) (see folio 1 of the certified copy of\nlegislative file No. 18.563).
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3) On September\n6, 2012, the bill \"Law for the Approval of the Agreement\nestablishing an Association between Central America, on the one hand, and the\nEuropean Union and its Member States, on the other; and the approval by the\nRepublic of Costa Rica of the Amendment to Article XXI of the Convention on\nInternational Trade in Endangered Species of Wild Fauna and Flora, adopted at\nan extraordinary meeting of the Conference of the Parties in Gaborone,\nBotswana, on April 30, 1983\", file No. 18.563, was referred to the\nSpecial Permanent Commission on International Relations and Foreign Trade\n(Comisión Permanente Especial de Relaciones Internacionales y de Comercio\nExterior) (see folio 4,990 of the certified copy of legislative file No.\n18.563).
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\n\n**4)** On **October 9, 2012,** a certified copy of case file No. 18.563 was sent to the Department of Studies, References, and Technical Services of the Legislative Assembly for the appropriate action (see folio 4,991 of the certified copy of legislative file No. 18.563).\n\n**5)** On **November 13, 2012,** the Director of the Archives, Investigation, and Processing Department of the Legislative Assembly sent the draft law in question to the National Printing Office for publication (see folio 4,992 of the certified copy of legislative file No. 18.563).\n\n**6)** On **November 14, 2012,** in Supplement No. 180 to Official Gazette La Gaceta No. 220, the draft law *\"Ley de Aprobación del Acuerdo por el que se establece una asociación entre Centroamérica, por un lado, y la Unión Europea y sus Estados Miembros, por otro; y la aprobación por parte de la República de Costa Rica de la Enmienda al artículo XXI de la Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres, adoptada en reunión extraordinaria de la Conferencia de las Partes, en Gaborone, Botsuana, el 30 de abril de 1983\"*, case file No. 18.563, was published (see [http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-1_14_11_2012.pdf](http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-1_14_11_2012.pdf), consulted on May 31, 2013).\n\n**7)** On **November 21, 2012,** several Deputies of the Legislative Assembly presented a motion (to which the number 3 – 19 was assigned) for legislative file No. 18.563 to be sent for consultation to the following institutions: all municipalities and District Municipal Councils, all autonomous institutions, University of Costa Rica, National University, Costa Rica Institute of Technology, State Distance University, National Technical University, Consejo Nacional de Rectores, CONESUP, Supreme Court of Justice, Attorney General's Office, Supreme Electoral Tribunal, Ombudsman's Office, Ministry of Foreign Affairs and Worship, Ministry of Governance, Police and Public Security, Ministry of Economy, Industry and Commerce, Ministry of Environment, Energy and Telecommunications, Ministry of Health, Ministry of National Planning and Economic Policy, Ministry of Science and Technology, Ministry of Justice and Peace, Ministry of Labor and Social Security, Dirección General de Migración y Extranjería, Coalición Costarricense de Iniciativas de Desarrollo, Corporación Hortícola Nacional, Corporación Bananera Nacional, Grupo ICE, Comptroller General of the Republic, Servicio Nacional de Salud Animal, Servicio Fitosanitario del Estado, Programa Integral de Mercadeo Agropecuario, Dirección General de Aduanas, Autoridad Reguladora de Servicios Públicos, Superintendencia de Telecomunicaciones, Refinadora Costarricense de Petróleo S.A., Consejo Nacional de Concesiones, all Professional Associations, Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial, Cámara de Exportadores de Costa Rica, Cámara de Industrias, Cámara de Agricultura y Agroindustria, Cámara de Comercio, Cámara de la Industria Alimentaria, Cámara de Tecnologías de Información y Comunicación, CRECEX, Corporación Ganadera, Cámara de Avicultores, Cámara de Porcicultores (see folios 4,996 and 4,997 of the certified copy of legislative file No. 18.563).\n\n**8)** On **November 22, 2012,** in ordinary session No. 19 of the Special Permanent Commission on International Relations and Foreign Trade, the referred motion was approved (see folio 4,997 of the certified copy of legislative file No. 18.563).\n\n**9)** On **November 21, 2012,** several Deputies of the Legislative Assembly presented a motion (to which the number 4-19 was assigned) to convene a hearing for senior officials and representatives of the following institutions: Cámara de Agricultura y Agroindustria, Cámara Nacional de Porcicultores, Cámara de Exportadores de Costa Rica, Ministry of Foreign Trade, Cámara de Industrias de Costa Rica, University of Costa Rica, Cámara de Comercio de Costa Rica, Cámara de la Industria Alimentaria, Cámara Nacional de Avicultores, and Corporación Ganadera (see folio 1068 of the certified copy of legislative file No. 18.563).\n\n**10)** On **November 22, 2012,** in ordinary session No. 19 of the Special Permanent Commission on International Relations and Foreign Trade, said motion was approved (see folio 4,998 of the certified copy of legislative file No. 18.563).\n\n**11)** On **November 29, 2012,** the Minister of the Presidency informed the Board of Directors of the Legislative Assembly that, through Decreto Ejecutivo No. 37.411-MP, the Executive Branch had convened extraordinary sessions starting from the date indicated in the Decree; among the included projects was case file No. 18.563 (see folio 5,402 of the certified copy of legislative file No. 18.563).\n\n**12)** The Special Permanent Commission on International Relations and Foreign Trade received responses from the following entities consulted: Municipalidad de Bagaces, Municipalidad de Belén, Concejo Municipal de Lepanto, CONESUP, Supreme Electoral Tribunal, Ministry of National Planning and Economic Policy, Ministry of Science and Technology, Dirección General de Migración y Extranjería, Coalición Costarricense de Iniciativas del Desarrollo, Instituto Costarricense de Electricidad, Dirección General de Aduanas, Autoridad Reguladora de los Servicios Públicos, Superintendencia de Telecomunicaciones, Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado, Cámara de Comercio de Costa Rica, Cámara Costarricense de la Industria Alimentaria, Banco Nacional de Costa Rica, Consejo Nacional de Producción, Instituto Costarricense de Acueductos y Alcantarillados, Instituto de Fomento y Asesoría Municipal, Instituto Nacional de las Mujeres, Instituto Nacional de Seguros, Junta de Protección Social de San José, Patronato Nacional de la Infancia (see folios 5,804 to 5,817 of the certified copy of legislative file No. 18.563).\n\n**13)** The Special Permanent Commission on International Relations and Foreign Trade received in hearing: Cámara Nacional de Agricultura y Agroindustria, CADEXCO, Ministry of Foreign Trade, Cámara de Industrias de Costa Rica, University of Costa Rica, Cámara de Comercio de Costa Rica, Cámara de la Industria Alimentaria, Corporación Ganadera, Cámara Nacional de Avicultores (see folios 5,817 to 5,832 of the certified copy of legislative file No. 18.563).\n\n**14)** On **December 17, 2012,** the Department of Technical Services of the Legislative Assembly delivered the legal report related to the draft law being processed under legislative file No. 18.563 (see folio 5,689 of the certified copy of legislative file No. 18.563).\n\n**15)** On **December 17, 2012,** via official letter number DM-00743-12, the Minister of Foreign Trade presented to the President of the Special Permanent Commission on International Relations and Foreign Trade several diplomatic notes referring to specific formal errors detected in the texts of the Agreement related to the other Central American countries (except for the case of Costa Rica); in addition, she clarified that such formal corrections do not modify the rights and obligations assumed by our country and the European Union (see folio 5,743 of the certified copy of legislative file No. 18.563).\n\n**16)** On **December 18, 2012,** the Special Permanent Commission on International Relations and Foreign Trade issued an affirmative and unanimous opinion on the draft law titled *\"Ley de Aprobación del Acuerdo por el que se establece una asociación entre Centroamérica, por un lado, y la Unión Europea y sus Estados Miembros, por otro; y la aprobación por parte de la República de Costa Rica de la Enmienda al artículo XXI de la Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres, adoptada en reunión extraordinaria de la Conferencia de las Partes, en Gaborone, Botsuana, el 30 de abril de 1983\"*, legislative file No. 18.563 (see folio 5,792 of the certified copy of legislative file No. 18.563).\n\n**17)** On **January 21, 2013,** the unanimous affirmative opinion of the Special Permanent Commission on International Relations and Foreign Trade was delivered to the Legislative Plenary (see folio 10,836 of the certified copy of legislative file No. 18.563).\n\n**18)** On **February 5, 2013,** in session No. 127, the Legislative Plenary began the substantive discussion of case file No. 18.563; however, it had motions presented via article 137 that were sent to the Reporting Commission (see folio 10,910 of the certified copy of legislative file No. 18.563).\n\n**19)** On **February 7, 2013,** in ordinary session No. 29 of the Special Permanent Commission on International Relations and Foreign Trade, the formulated motions were discussed, and they were ultimately rejected (see folio 10,932 of the certified copy of legislative file No. 18.563).\n\n**20)** On **February 7, 2013,** the Special Permanent Commission on International Relations and Foreign Trade delivered the first report on the motions referred by the Legislative Plenary to the Legislative Board of Directors (see folio 10,930 of the certified copy of legislative file No. 18.563).\n\n**21)** On **February 7, 2013,** in session No. 129, the Legislative Plenary continued with the substantive discussion; however, new motions were presented via article 137 that were sent to the Reporting Commission (see folio 11,007 of the certified copy of legislative file No. 18.563).\n\n**22)** On **February 11, 2013,** in extraordinary session No. 31, the Special Permanent Commission on International Relations and Foreign Trade discussed the formulated motions and finally rejected them (see folio 11,020 of the certified copy of legislative file No. 18.563).\n\n**23)** On **February 12, 2013,** the Special Permanent Commission on International Relations and Foreign Trade delivered the second report on motions referred by the Legislative Plenary (see folio 11,018 of the certified copy of legislative file No. 18.563).\n\n**24)** On **February 12, 2013,** in plenary session No. 131, the Legislative Plenary continued with the substantive discussion of project No. 18.563; however, it had new motions presented that were sent to the Reporting Commission (see folio 11,043 of the certified copy of legislative file No. 18.563).\n\n**25)** On **February 13, 2013,** in ordinary session No. 33 of the Special Permanent Commission on International Relations and Foreign Trade, the formulated motions were discussed and finally rejected (see folio 11,061 of the certified copy of legislative file No. 18.563).\n\n**26)** On **February 14, 2013,** the Special Permanent Commission on International Relations and Foreign Trade delivered the third report on the referred motions to the Legislative Board of Directors (see folio 11,059 of the certified copy of legislative file No. 18.563).\n\n**27)** On **February 19, 2013,** in session No. 134, the Legislative Plenary continued with the substantive discussion; however, new motions were presented that were sent to the Reporting Commission (see folio 11,081 of the certified copy of legislative file No. 18.563).\n\n28) On February 20, 2013, in extraordinary session No. 35, the Permanent Special Committee on International Relations and Foreign Trade discussed the motions formulated and, finally, rejected them (see folio 11,117 of the certified copy of legislative file No. 18,563).\n\n29) On February 21, 2013, the Permanent Special Committee on International Relations and Foreign Trade delivered the fourth report of motions referred by the Legislative Plenary (see folio 11,115 of the certified copy of legislative file No. 18,563).\n\n30) On February 28, 2013, in plenary session No. 140, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, with the fourth report of motions via article 137 (see folio 11,267 of the certified copy of legislative file No. 18,563).\n\n31) On March 4, 2013, in plenary session No. 141, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, and the first session for the presentation of reiteration motions was counted (see folio 11,274 of the certified copy of legislative file No. 18,563).\n\n32) On March 5, 2013, in plenary session No. 142, the Legislative Plenary continued the discussion on the merits of bill No. 18,563, and the second session for the presentation of reiteration motions was counted (see folio 11,280 of the certified copy of legislative file No. 18,563).\n\n33) On March 7, 2013, in plenary session No. 144, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, and the third session for the presentation of reiteration motions was counted (see folio 11,286 of the certified copy of legislative file No. 18,563).\n\n34) On March 11, 2013, the Minister of the Presidency communicated to the Board of Directors of the Legislative Assembly that, through Executive Decree No. 37,585-MP, the Executive Branch had withdrawn several legislative files from consideration in extraordinary sessions, among them No. 18,563 (see folio 11,292 of the certified copy of legislative file No. 18,563).\n\n35) On March 11, 2013, the Minister of the Presidency communicated to the Board of Directors of the Legislative Assembly that, through Executive Decree No. 37,586-MP, the Executive Branch had expanded the call for extraordinary sessions as of the date indicated in the Decree; among the bills included was file No. 18,563 (see folio 11,294 of the certified copy of legislative file No. 18,563).\n\n36) On March 18, 2013, in plenary session No. 149, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 3 motions were rejected, the first via article 154, the second via article 155, and the third via article 153; a motion for review was presented to this last one, which was also rejected, among other rejected motions (see folio 11,320 of the certified copy of legislative file No. 18,563).\n\n37) On March 19, 2013, in plenary session No. 150, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 motion for review of a motion via article 153 was rejected; in addition, a motion via article 153 was rejected and a review of that motion was rejected, among other rejected motions (see folio 11,400 of the certified copy of legislative file No. 18,563).\n\n38) On March 21, 2013, in plenary session No. 152, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 2 motions were rejected, one for consultation and another via article 155; subsequently, 1 motion for consultation and another via article 153 were rejected (see folio 11,481 of the certified copy of legislative file No. 18,563).\n\n39) On April 1, 2013, in plenary session No. 153, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 7 procedural motions via article 153 were rejected; likewise, 6 motions for review of the aforementioned motions were rejected (see folio 11,506 of the certified copy of legislative file No. 18,563).\n\n40) On April 2, 2013, in plenary session No. 154, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 2 procedural motions via article 153 were rejected; likewise, 2 motions for review of the aforementioned motions were rejected, among other various procedures related to motions (see folio 11,608 of the certified copy of legislative file No. 18,563).\n\n41) On April 4, 2013, in plenary session No. 156, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 procedural motion via article 153 was rejected; likewise, 1 motion for review of the aforementioned motion was rejected (see folio 11,707 of the certified copy of legislative file No. 18,563).\n\n42) On April 8, 2013, in plenary session No. 157, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 7 reiteration motions were rejected; also, 8 motions for review of the aforementioned motions were rejected (see folio 11,731 of the certified copy of legislative file No. 18,563).\n\n43) On April 9, 2013, in plenary session No. 158, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 4 reiteration motions were rejected; in addition, 4 motions for review of the aforementioned motions were rejected (see folio 11,860 of the certified copy of legislative file No. 18,563).\n\n44) On April 16, 2013, in plenary session No. 161, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 motion for postponement was rejected; then, 1 motion for review was presented and approved, so the motion for postponement was approved (see folio 11,985 of the certified copy of legislative file No. 18,563).\n\n45) On April 16, 2013, in plenary session No. 161, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; a motion was approved to alter the agenda for the Plenary sessions, so that in the second part of the session, file No. 18,563 would occupy the first place of the First Debates (see folios 11,998 and 11,999 of the certified copy of legislative file No. 18,563).\n\n46) On May 1, 2013, Deputy María Jeanette Ruiz Delgado requested that the bill be placed on the docket (see folio 12,009 of the certified copy of legislative file No. 18,563).\n\n47) On May 6, 2013, Deputy Edgardo Araya Pineda requested that the bill be placed on the docket (see folio 12,010 of the certified copy of legislative file No. 18,563).\n\n48) On May 9, 2013, Deputy Edgardo Araya Pineda again requested that the bill be placed on the docket (see folio 12,011 of the certified copy of legislative file No. 18,563).\n\n49) On May 9, 2013, in plenary session No. 6, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; a motion for postponement was approved to postpone consideration of file 18,563, which is in the first place of first debates, and to consider the rest of the Agenda in subsequent order (see folio 12,012 of the certified copy of legislative file No. 18,563).\n\n50) On May 13, 2013, in plenary session No. 7, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 motion for review of a reiteration motion was rejected; likewise, reiteration motion number 14-1 and its respective review were rejected (see folio 12,020 of the certified copy of legislative file No. 18,563).\n\n51) On May 16, 2013, in plenary session No. 10, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; in addition, the motion for review of reiteration motion number 25 was announced (see folio 12,058 of the certified copy of legislative file No. 18,563).\n\n52) On May 14, 2013, in plenary session No. 8, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 6 reiteration motions were rejected; likewise, 6 motions for review of the aforementioned motions were rejected; subsequently, 4 reiteration motions were withdrawn (see folio 12,066 of the certified copy of legislative file No. 18,563).\n\n53) On May 21, 2013, in plenary session No. 12, the Legislative Plenary continued with the discussion on the merits of the bill \"Ley de Aprobación del Acuerdo por el que se establece una asociación entre Centroamérica, por un lado, y la Unión Europea y sus Estados Miembros, por otro; y la aprobación por parte de la República de Costa Rica de la Enmienda al artículo XXI de la Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres, adoptada en reunión extraordinaria de la Conferencia de las Partes, en Gaborone, Botsuana, el 30 de abril de 1983\", file No. 18,563, which was voted on in first debate with thirty-seven Deputies in favor and four against (see folio 12,387 of the certified copy of legislative file No. 18,563).\n\n54) On May 24, 2013, the Permanent Special Drafting Committee received file No. 18,563 from the Secretariat of the Board of Directors to continue with the respective procedure (see folio 12,390 of the certified copy of legislative file No. 18,563).\n\n55) On May 28, 2013, the Department of Technical Services submitted a Report for the Special Drafting Committee, with some observations for legislative file No. 18,563 (see folio 12,399 of the certified copy of legislative file No. 18,563).\n\n56) On May 28, 2013, in ordinary session No. 1, the Permanent Special Drafting Committee discussed matters related to legislative bill No. 18,563 and approved its final wording (see folios 12,403 and 12,430 of the certified copy of legislative file No. 18,563).\n\n57) On May 28, 2013, the Permanent Special Drafting Committee delivered the Final Wording of file No. 18,563 to the Secretariat of the Board of Directors (see folio 12,441 of the certified copy of legislative file No. 18,563).\n\nV.- Regarding the legislative procedure in the specific case. In accordance with the provisions of article 98 of the law governing this Jurisdiction, this Court reviewed the legislative procedure for the processing of the bill entitled \"Ley de Aprobación del Acuerdo por el que se establece una asociación entre Centroamérica, por un lado, y la Unión Europea y sus Estados Miembros, por otro; y la aprobación por parte de la República de Costa Rica de la Enmienda al artículo XXI de la Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres, adoptada en reunión extraordinaria de la Conferencia de las Partes, en Gaborone, Botsuana, el 30 de abril de 1983\". This Agreement was signed by the Minister of Foreign Trade, Anabel González Campabadal, and the Minister of Foreign Affairs, Enrique Castillo Barrantes. The former was empowered to proceed in this manner, by virtue of the provisions of article 2, subsections b) and d), of Law No. 7638 of October 30, 1996, which created the Ministry of Foreign Trade and the Foreign Trade Promoter, and what was stated by the Constitutional Court in ruling number 8190-2002 at 11:12 a.m. on August 23, 2002:\n\n\"(…) IV.- Signing of the Treaty. This Chamber believes that the signing of the Free Trade Agreement between Costa Rica and Canada by the Minister of Foreign Trade, without the concurrence of the President of the Republic, is not contrary to the Law of the Constitution. From a reading of article 140, subsection 10), it appears that the signing of international treaties is an attribution of the Executive Branch, understood as the collegiate body composed of the President and the relevant Minister. However, the Vienna Convention on the Law of Treaties itself, approved by Law number 7615 of July twenty-fourth, nineteen ninety-six, in its article 7 provides, as relevant:\n\n\"ARTICLE 7.- Full powers. 1.- For the adoption or authentication of the text of a treaty, or for expressing the consent of the State to be bound by a treaty, a person is considered as representing a State: a) If he produces appropriate full powers, or b) If it appears from the practice of the States concerned, or from other circumstances, that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.(...)\"\n\nIn the present case, we are faced with the situation described in subsection b) of paragraph 2 transcribed above, referring to \"other circumstances\" that demonstrate the will of the State to be represented by a specific official. This is because Law number 7638 of October thirtieth, nineteen ninety-six gives the Minister of Foreign Trade sufficient competence to negotiate and sign, without the concurrence of the person exercising the Presidency of the Republic, agreements such as the one brought for consultation, even without a letter of full powers. As relevant, article 2 states: \"ARTICLE 2.- Attributions The attributions of the Ministry of Foreign Trade shall be:(...) b) Direct bilateral and multilateral trade and investment negotiations, including matters related to Central America, and sign treaties and agreements on these matters. By agreement, the Executive Branch may authorize that treaties and agreements, as well as their modifications, be signed by the heads of other ministries or public entities of the State that have specific legal competence over the subject matter of the treaty or agreement. (...)\n\nd) Represent the country at the World Trade Organization and in other international trade forums where treaties, agreements, and, in general, trade and investment issues are discussed.(...)\"\n\nOn the other hand, in judgment number 6224-94, at nine o'clock on November eleventh, nineteen ninety-four, this Chamber considered that the fact that the President of the Republic participates with his will in subsequent procedural stages: sanction and deposit of the Treaty, allows for the correction of any defect that might have existed in the effective representation held by the Minister. To the above, we can add that the President has two other opportunities to invoke his eventual disagreement with the bill: at the time of its presentation to the Legislative Assembly and in the call for extraordinary sessions, times when he could assert his constitutional attributions. If, in this specific case, it was the Minister of Foreign Trade who signed the agreement whose approval is under discussion, this does not imply any defect of unconstitutionality (…)\" (the emphasis is not in the original).\n\nRegarding the second official (the Minister of Foreign Affairs), the Chamber believes that he was also empowered to proceed with the signing of the Association Agreement under analysis. In that sense, this Constitutional Court has admitted the legitimacy of the procedure for approving a treaty or international agreement when it is signed by the Minister of Foreign Affairs, without the concurrence of the President of the Republic, even when lacking a letter in which full powers are expressly granted to him for this purpose. Thus, in advisory opinion number 2000-08974 at 9:01 a.m. on October 13, 2000, this Chamber resolved the following:\n\n\"(...) In this regard, the only potentially controversial point would be the fact that the Agreement was signed by the Minister of Foreign Affairs and Culture, without the concurrence of the President of the Republic. From a reading of article 140, subsection 10), it appears that the signing of international treaties is an attribution of the Executive Branch, understood as the collegiate body composed of the President and the relevant Minister. However, this Chamber has recognized the possibility that the Minister of Foreign Affairs and Culture, in his capacity as collaborator of the President in matters of international relations, may sign international treaties even without a letter expressly granting him full powers to do so.\n\nIn judgments number 06224-94, at nine o'clock on November eleventh, nineteen ninety-four, and 06725-99 at three o'clock and nine minutes on September first, nineteen ninety-nine, this Chamber considered that the fact that the President of the Republic participated with his will in subsequent procedural stages: sanction and deposit of the treaty, allows for the correction of any defect that existed in the effective representation held by the Chancellor. To the above we can add that the President has two other opportunities to invoke his eventual disagreement with the bill: at the time of its presentation to the Legislative Assembly and in the call for extraordinary sessions, moments in which he could assert his constitutional powers. If in this case it was the Minister of Foreign Affairs and Worship who signed the agreement whose approval is under discussion, this does not imply the unconstitutionality of the legislative procedure followed so far. Not having found in this Chamber the presence of unconstitutional procedures in the legislative bill under consultation, it is now appropriate to address the merits of the initiative under consultation (...)” (the underlining does not correspond to the original).\n\nSubsequently, the text of the bill was referred to the Special Permanent Commission on International Relations and Foreign Trade, rendering the respective unanimous affirmative report. Likewise, as can be verified from the examination of the legislative file, the referred bill was sent for consultation to the following institutions: all municipalities and District Municipal Councils, all autonomous institutions, University of Costa Rica, National University, Technological Institute of Costa Rica, State Distance University, National Technical University, National Council of Rectors, CONESUP, Supreme Court of Justice, Attorney General's Office of the Republic, Supreme Electoral Tribunal, Ombudsman's Office, Ministry of Foreign Affairs and Worship, Ministry of the Interior, Police and Public Security, Ministry of Economy, Industry and Commerce, Ministry of Environment, Energy and Telecommunications, Ministry of Health, Ministry of National Planning and Economic Policy, Ministry of Science and Technology, Ministry of Justice and Peace, Ministry of Labor and Social Security, General Directorate of Migration and Immigration, Costa Rican Coalition of Development Initiatives, National Horticultural Corporation, National Banana Corporation, ICE Group, Comptroller General of the Republic, National Animal Health Service, State Phytosanitary Service, Integral Agricultural Marketing Program, General Directorate of Customs, Regulatory Authority of Public Services, Superintendency of Telecommunications, Costa Rican Oil Refinery S.A., National Council of Concessions, all Professional Associations, Costa Rican Union of Chambers and Associations of the Business Sector, Chamber of Exporters of Costa Rica, Chamber of Industries, Chamber of Agriculture and Agribusiness, Chamber of Commerce, Food Industry Chamber, Information and Communication Technologies Chamber, CRECEX, Livestock Corporation, Poultry Farmers Chamber, Swine Farmers Chamber. \n\nOn the other hand, the Special Permanent Commission on International Relations and Foreign Trade received responses from the following consulted entities: Municipality of Bagaces, Municipality of Belén, Municipal Council of Lepanto, CONESUP, Supreme Electoral Tribunal, Ministry of National Planning and Economic Policy, Ministry of Science and Technology, General Directorate of Migration and Immigration, Costa Rican Coalition of Development Initiatives, Costa Rican Institute of Electricity, General Directorate of Customs, Regulatory Authority of Public Services, Superintendency of Telecommunications, Costa Rican Union of Chambers and Associations of the Private Business Sector, Chamber of Commerce of Costa Rica, Costa Rican Food Industry Chamber, National Bank of Costa Rica, National Production Council, Costa Rican Institute of Aqueducts and Sewers, Institute of Municipal Development and Advisory, National Institute of Women, National Insurance Institute, Social Protection Board of San José, National Children's Trust.\n\nIn addition to this, the aforementioned Commission received in hearing: National Chamber of Agriculture and Agribusiness, CADEXCO, Ministry of Foreign Trade, Chamber of Industries of Costa Rica, University of Costa Rica, Chamber of Commerce of Costa Rica, Food Industry Chamber, Livestock Corporation, National Chamber of Poultry Farmers. \n\nWith the foregoing, it is verified that the legislative bill was made known to a wide range of sectors that could be affected. Likewise, no infringement of the rights and powers of the legislators is observed.\n\nThus, regarding the foregoing, no unconstitutionality is noted.\n\n**VI.-** **In particular regarding the vote required for the approval of the bill.** The legislative bill was heard by the Legislative Plenary as was appropriate, since it is an international treaty and, to that extent, could not be delegated to a Legislative Commission with Full Powers, as established in Article 124, paragraph 3, of the Political Constitution, in relation to Article 121, subsection 4), *ibidem*. In that same order of ideas, it can be observed that legislative bill No. 18,563 was called by the Executive Branch to be heard in extraordinary sessions, respecting the provisions of Article 118 of the Political Charter. \n\nNow, the legislative bill counted for its approval in the first debate with the vote of the absolute majority of the members present in the Assembly (37 Deputies). In this regard, it is worth noting that, certainly, Article 121 subsection 4) of the Political Constitution requires a qualified vote of two-thirds of the total number of deputies when it concerns public treaties and international agreements that attribute or transfer certain competencies to a community legal order, for the purpose of achieving regional and common objectives. In this regard, in judgment number 2013-003655 at 9:05 a.m. on March 15, 2013, \n\n“*II.- Characteristics of Community Law: Doctrinally it is defined as an organized and structured set of legal norms, which possesses its own sources, is equipped with adequate organs and procedures to issue them, interpret them, apply them, and enforce them. While international law promotes international cooperation, Community Law promotes the integration of the countries involved, and for this reason it has been said that it forms a new legal order of international law, characterized by its independence and primacy, characteristics consubstantial to its existence.* \n\n*Community law has great penetration in the internal legal order of the Member States, which is manifested in immediate applicability, its direct effect, and its primacy. And it is that the Community constitutes a new international legal order, for whose benefit the State parties have limited, albeit in a restricted manner, their sovereign rights. From Community Law arise rights and obligations, not only for the Member States, but also for their citizens. It is precisely because of the transcendence of the norms intended to be approved—which, as indicated, can transfer competencies—that it is desirable for specialists in the subject to analyze, prior to the signing of the treaties intended to be subscribed in this field, the scope and compatibility of those instruments with the internal order and system. This is especially important considering that the mandatory consultation reaches the Chamber once the treaty has been negotiated and when it has already been approved in the first debate, in addition to the fact that this Court limits its analysis to aspects of constitutional relevance.* \n\n*Without any doubt, the central core of integration are the treaties, which can be of two kinds: those of an institutional nature, which articulate and structure the system and its institutions, and those that develop them in a uniform, clear, concrete manner and that usually contain the norms in which the States transfer competencies to the community organization, for the fulfillment of the purposes that are of interest to them («)* \n\n*It is worth indicating that the transfer of competencies to the community legal order must be express and by means of a treaty, so that the attribution of regulatory power (which in this case is done) to community organs can only be exercised over matters expressly defined or outlined in a treaty. In the one of an institutional nature, that power could not be exercised as long as there is no express transfer of competencies through an agreement that must be approved by a vote of no less than two-thirds of the total members of the Legislative Assembly (Article 121, subsection 4 of the Political Constitution), and subjected to mandatory consultation of constitutionality (Article 10, ibidem). Consequently, it is important to note that all norms approved in the integration process are constituting an authentic legal order, which due to its nature and the purposes it pursues falls within what has been defined as Community Law.* \n\n*III.- Transfer of Competencies: Given the need for the Community Law that was being produced in the Central American region to find an adequate constitutional framework in Costa Rica, by Law No. 4123 of May 30, 1968, Articles 7 and 121 of the Political Constitution were reformed, and more recently, by Law 7128 of August eighteenth, nineteen eighty-nine, Article 105 of the same normative body. Article 7, first paragraph, established: \"Public treaties, international agreements, and concordats duly approved by the Legislative Assembly, shall have, from their enactment or from the day they designate, authority superior to the laws\"* \n\n*Article 121, subsection 4, second paragraph provided:* \n\n*\"Public treaties and international agreements that attribute or transfer certain competencies to a community legal order, for the purpose of achieving regional and common objectives, shall require the approval of the Legislative Assembly by a vote of no less than two-thirds of the total number of its members\" («)* \n\n*In the case of Community Law, the Political Constitution has provided, as evidenced by the simple reading of the transcribed provisions, for the transfer of certain national competencies proper to a different legal order—the Community one—which otherwise could not achieve the common goals that the State parties of the integration system have proposed. Now, for the Chamber, as expressed in the dissenting vote of Magistrates Jacobo, Blanco, Odio, Porter, and Benavides, issued in the Full Court session at ten o'clock on March twenty-eighth, nineteen seventy-three—which resolved an action of unconstitutionality against various articles of the Central American Uniform Customs Code—the delegation of competencies to the community legal order is in no way unrestricted; rather, it has specific limits. Indeed, as indicated in that opinion: \"...It is not possible to exceed the Political Charter, in its letter or in its spirit, since it establishes the fundamental principles of the State and sets, consequently, the limits of action of the Public Powers, both substantially and formally, and both internally and externally\", and for the Chamber, competencies that are essential for the Costa Rican constitutional legal order are not transferable, as we will analyze below.* \n\n*The delegation of competencies produces a very important modification to the internal legal order. It is necessary to indicate that this delegation finds its first limit in \"the purpose of achieving regional and common objectives\", that is, there could be no delegation of competencies for purposes and objectives that are not those that the constituent has indicated. On the other hand, there must be absolute respect for the principles and values that the Political Constitution enshrines, which permeates the rest of the legal order and the various fields of human endeavor; social, economic, cultural, religious, political, etc. For the Chamber, the Legislative Assembly could not validly approve international treaties that reduce the levels of protection of fundamental rights. («)*\n\n*VI.- Given the institutional nature of the agreement before us, the Chamber does not find norms that are unconstitutional, nor does it note infringements of the legislative approval procedure. However, as this treaty is an integral part of a system of transfer of competencies, which as stated results in a community system, even though the transfer of competencies has not been given expressly, although provided for in the Tegucigalpa Protocol, all of this implies that for its approval a qualified vote is required, under the terms indicated in the second paragraph of subsection 4 of Article 121 of the Political Constitution (the highlighted text does not correspond to the original)* \n\n*On the other hand, in vote number 1079-93 at 2:48 p.m. on March 2, 1993, the Chamber referred to various important aspects contained in Article 121 subsection 4) of the Political Constitution, in relation to the aggravated procedure for the approval of the international instruments provided for in that norm. In this regard, it was stated that:* \n\n*\"VI.- Article 121, subsection 4 of the Constitution, when defining the exclusive powers of the Legislative Assembly, that of \"4) Approve or disapprove international agreements, public treaties, and concordats. \"Public treaties and international agreements that attribute or transfer certain competencies to a community legal order, for the purpose of achieving regional and common objectives, shall require the approval of the Legislative Assembly, by a vote of no less than two-thirds of the total number of its members«\" This norm raises three types of important doubts, namely: a) what meaning do the concepts of \"attribute\" or \"transfer\" have, in relation to that of \"competencies\"; b) what should be understood there by \"community order\"; and c) what scope should be given to the \"regional and common objectives\" that in the text constitute the purpose of the same order.* \n\n*Regarding the first question, the Chamber observes that in the context of Constitutional Law, the transcribed norm has the clear purpose of aggravating the approval procedure for international treaties or agreements, when in them public competencies that otherwise correspond to the Costa Rican State in the exercise of its sovereignty are attributed to extra-state bodies. Put another way, it seems evident that it would make no sense to impose a qualified majority for the approval of some treaties, and not others in which the constituent's reservation had equal or greater justification; and it is that, in reality, given that in every international treaty there is contained, by definition, a reduction or affectation of sovereignty, what that reservation is concerned with is, with all clarity, to surround with the guarantee implied in the qualified majority of the Legislative Assembly the cases in which the international instrument implies, in addition to that reduction or affectation directly established in it, the possibility that new obligations may be imposed on the Costa Rican State, without its will, by extra-national bodies and in matters that, otherwise, would correspond exclusively to it. B) The foregoing obliges us to recognize that the expression \"community order\", although not fortunate, only acquires meaning, in the context of this subsection, if \"community\" is understood as that set of norms that, although created through typical sources of the Law of Nations, such as treaties, in reality have a \"supranational\" character, insofar as it is capable of imposing on the State Parties obligations, duties, burdens, or limitations beyond those agreed upon and even against their will, for example, through decisions adopted by a majority; this being something completely different from that of merely international orders, in which the States commit only to what they commit to by treaty, or, if this also creates some type of international body, the decisions in that body are either not binding, or if they are, must be taken by unanimity, that is, with the express acceptance of the Costa Rican State, through its legitimate representatives competent for this purpose. It is true that the inclusion of the concept \"community order\" in said constitutional norm was made by the Legislative Assembly acting as a constituent assembly (by Law No. 4123 of May 30, 1968), bearing in mind the process of integration or Central American Common Market, but it would be contradictory and, therefore, unconstitutional to deduce from this that the Constitution imposes an aggravated procedure for the approval of the instruments of that process, desired by Costa Rica and closer and more natural because it occurs in the geopolitical and historical sphere of the Great Central American Homeland, than in other more distant and less intense cases in which competencies of the Costa Rican State are also assigned or transferred to an extra-national order. C) In the same context, the \"regional and common objectives\" must be interpreted in harmony with the foregoing considerations and, therefore, the conjunction, \"and\" that separates them, must be understood as disjunctive-copulative, so that the provision must be applied, whether it concerns regional objectives, or merely common objectives (the highlighted text does not correspond to the original)* \n\n*Finally, through judgment number 4640-96 at 9:09 a.m. on September 6, 1996, the Chamber heard a mandatory consultation of constitutionality regarding the bill of Law for the approval of the Protocol to the General Treaty of Central American Economic Integration (known as the Guatemala Protocol), signed by the Governments of the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, in Guatemala City on October 29, 1993. On that occasion, this Court referred to the same legal grounds consigned in vote number 4638-96 at 9:03 a.m. on September 6, 1996, and it was considered that since the cited Protocol was an integral part of a system of transfer of competencies, which results in a community system (even though the transfer of competencies was not given expressly in that specific case, although provided for in the Tegucigalpa Protocol), this implied that for its approval a qualified vote was required, under the terms indicated in the second paragraph of subsection 4 of Article 121 of the Political Constitution. Now, it is worth noting that the concept of \"community legal order\" of said norm is different from that of \"multilateral treaty\", since the former requires a ratio iuris tending to the formation of a \"community\", that is, a regional integration system with qualities of supranationality tending so that distinct parts constitute, at least progressively, a whole (as it was in the European Coal and Steel Community), in which there has operated a transfer of sovereign powers by the Member States, towards a sui generis legal order, whose organs enjoy independence and full authority in the exercise of their functions. Such transfer, in the case of Costa Rica and by virtue of subsection 4 of Article 121 of the Political Constitution, can only be made to a true community legal order, unlike other conventional instruments.”\n\nConsequently, the requirement of a qualified vote of two-thirds of the total number of deputies provided for in Article 121, subsection 4) of the Political Constitution, only refers to those treaties or agreements that attribute or transfer certain competencies to a community legal order. This latter concept refers to an order that, beyond promoting mere international cooperation among States, actually seeks the full integration of the countries involved, thus aspiring to configure a new legal order of international law (the Community) characterized by its independence and primacy, characteristics consubstantial to its existence. \n\nA fundamental quality of that type of order consists in the possibility that new obligations may be imposed on a State even against its will by extra-national bodies, in matters that, otherwise, would exclusively correspond to it to decide.\n\nConsequently, this is a situation very different from those treaties or conventions in which international bodies, in order to bind a country with their resolutions, require the express acceptance of the affected State, through its legitimate representatives competent for that purpose.\n\nThus, the constitutional concept of “community legal order” is very different from that of a “multilateral treaty,” since the former requires a *ratio iuris* aimed at the formation of a “Community,” that is, a system of regional integration with qualities of supranationality tending to ensure that different parts constitute, at least progressively, a whole (as the European Coal and Steel Community was in its time), in which a transfer of sovereign powers by the Member States has operated toward a *sui generis* legal order, whose bodies enjoy independence and full authority in the exercise of their functions, and may even impose their will on their Member States. Such a community goes beyond a new international legal order, as it even aspires to intertwine cultural ties in order to create a community with a certain common identity, a matter that is far from the aims of economic institutions that only seek integration, commercial exchange, and economic cooperation among States. It is worth adding that when Article 121(4) of the Political Constitution alludes to the transfer of certain competences to a community legal order, the purpose of achieving regional and common objectives, also mentioned by that provision, rather than constituting an additional assumption, actually signifies a natural effect of the specific legal nature of every community legal order. There is no community legal order that does not tend to achieve regional and common objectives.\n\nIn the present case, this Chamber considers that the Association Agreement under review is in no way aimed at creating a community legal order. Indeed, Article 2(a) of the Agreement indicates as an objective to strengthen and consolidate relations between the Parties through an association, and subsection (b) emphasizes that it is a privileged political association. This concept of association is presented in a context in which both regions (Central America and Europe) remain in their respective regional spheres of action, without there ever being an aspiration to create a single region. Nor is the establishment of a community legal order intended internally within the Central American Party, since Article 3 of the Agreement establishes that none of its provisions shall be interpreted in such a way as to undermine the sovereignty of any Republic of the CA Party. The fact that, in order to apply the Agreement, it is positive to promote regional integration does not go beyond the creation of a political environment favorable to bi-regional cooperation and commercial relations as well as the general execution of the Agreement, which in no way implies the establishment of a community legal order, nor a new international law legal order, much less the erection of a Community in the Central American sphere. Likewise, although numeral 72 of the Agreement sets regional integration and progressively achieving an economic union in Central America as an objective of cooperation, the truth is that it refers to possible destinations of cooperation from a potential perspective, not to the current materialization of a Community through the approval of the Agreement, much less to a new international law legal order.\n\nThis thesis becomes even more palpable because, according to Article 6.4 of the Agreement, the Association Council may only adopt decisions and recommendations by mutual agreement between the Parties, and, in the case of the Republics of the CA Party, the adoption of decisions and recommendations shall require consensus. Ergo, without the acquiescence of the Costa Rican State, it cannot be forced to comply with any resolution, which implies that there is no transfer of sovereign powers by the Member States toward a *sui generis* legal order, whose bodies enjoy such a degree of independence and full authority as to be able to impose a resolution on Costa Rica against our country's will (A more extensive explanation regarding that Council is provided in Considerando IX of this judgment).\n\nConsequently, since the situation set forth in Article 120(4) of the Political Constitution is not configured, this Treaty does not require the vote of two-thirds of the total number of deputies for its approval, but may be voted on as provided in Article 119 of the Fundamental Law, that is, by an absolute majority of the votes present.\n\n**VII.- On the violation of the principle of publicity**. Recently, through judgment number 2013-006969 at 15:05 on May 22, 2013, this Court declared the following:\n\n*\"IV.- ON THE PROCEDURE IN THE SPECIFIC CASE. Based on the breakdown contained in the previous point, it is possible to verify that, on December 5, 2011, the Executive Branch submitted to the Legislative Assembly the draft for \"Approval of the Convention concerning Decent Work for Domestic Workers (Convention 189)\", for its respective study and approval, in application of Articles 121(4) and 140(5), (10), and (12) of the Political Constitution. Such convention had been adopted, in turn, at the 100th Meeting of the International Labour Conference of the International Labour Organization (ILO), held in June 2011. As part of the corresponding legislative procedure, the draft was published in Digital Supplement No. 51 of La Gaceta No. 78 of April 23, 2012. Likewise, a legal report was rendered by the Department of Technical Services of the Legislative Assembly, it was ordered to consult the draft with various bodies and institutions, and, finally, after its study by the Permanent Special Committee on Legal Affairs, a first affirmative opinion was rendered. Subsequent to that, the draft was approved in the first debate, unanimously, in plenary session number 64 of the Legislative Assembly on September 13, 2012, with 40 votes. The file then passed to the Permanent Special Drafting Committee. However, at that stage or phase of the procedure, it was detected that the certified copy of the text of the \"Convention concerning Decent Work for Domestic Workers (Convention 189)\", which had initially been provided by the Executive Branch, did not contain the complete text corresponding to Article 22. This led to the decision to return the legislative file to the Legislative Plenary. In session number 72 of the Legislative Plenary, on September 27, 2012, a motion was approved, in application of Article 154 of the Regulations of the Legislative Assembly, to send the draft back to the Permanent Committee on Legal Affairs to issue a new opinion. As a result of the above, the aforementioned Committee proceeded again to study the draft and confirmed that, indeed, the certified copy of the text of the \"Convention concerning Decent Work for Domestic Workers (Convention 189)\", which had been sent by the Executive Branch, did not contain the full or complete text of the cited international instrument, due to an apparent material error in the photocopying process of the text. This led to the President of the Permanent Committee on Legal Affairs, by means of official letter No. CJ-863-10-12, dated October 24, 2012, requesting the Minister of Labor and Social Security that \"in order to correct the material error found in the opinion on the Bill for the approval of the convention concerning decent work for domestic workers (Convention 189), File No. 18335, initially submitted and approved by this Committee, I request your good offices and respecting the right of initiative, as it is necessary to send the document and all communications sent to the country, with the signatures of the members of the Executive Branch, which attest to the commitment of the Republic of Costa Rica regarding that international legal instrument.\" In response to this request, by means of official letter DP-0643-2012, dated October 26, 2012, signed by the President of the Republic and the Minister of Labor and Social Security, a new certified copy of the complete text of the \"Convention concerning Decent Work for Domestic Workers (Convention 189)\" was sent to the Permanent Committee on Legal Affairs. Based on this second certified copy, the Permanent Committee on Legal Affairs rendered a new affirmative opinion, and in session number 106 of the Legislative Plenary, on November 29, 2012, the draft was approved again, in the first debate, with 43 votes. Now, contrasting or comparing both documents, that is, the certified copies sent by the Executive Branch to the Legislative Assembly on December 5, 2011, and those sent through official letter DP-0643-2012, dated October 26, 2012, it is verified that, certainly, the first set of certified copies did not contain the full or complete text of Convention 189, because, due to an apparent material error, at the time of photocopying the text to be sent to the Legislative Assembly, the last line of several pages of the international instrument was omitted from the photocopy, causing several of the articles contained in those copies to be incomplete, mutilated, or inconclusive. Specifically: i) Article 2, second paragraph, subsection b), was missing the phrase: \"substantive special characteristics\"; ii) Article 6, sole paragraph, was missing the phrase: \"for whom they work, decent living conditions that respect their privacy\"; iii) Article 9, sole paragraph, was missing subsection c), which has the following content: \"c) are entitled to keep their travel and identity documents in their possession\"; iv) Article 13, second paragraph, was missing the phrase: \"of domestic workers, where such organizations exist\"; v) Article 16, sole paragraph, was missing the phrase: \"national practice, to ensure that all domestic workers, whether\"; and vi) Article 22, first paragraph, was missing the phrase: \"one year after the date on which it has been registered\". Given this, it was appropriate for the Legislative Assembly to seek the correction of the legislative procedure and, in particular, to retract the procedure, so that the Executive Branch would provide a new certified copy of the aforementioned convention, but this time complete or fully intact, so that it could be the subject of new study, discussion, and, eventually, legislative approval. This Chamber has insisted in its jurisprudence on the proper distribution, delimitation, and respect of the constitutional competences attributed to the Executive Branch and the Legislative Assembly, regarding the process of discussion, negotiation, and signing of international treaties by the Executive Branch (Article 140(10) of the Political Constitution), and their subsequent approval or disapproval by the Legislative Assembly (Article 121(4) of the Political Constitution). Thus, regarding this issue, in judgment number 2005-07428 at 16:47 on June 14, 2005, this Chamber clarified: ('it is clear from the constitutional text that the main competence' for the formulation and negotiation of international treaties, public agreements, and concordats, corresponds to the Executive Branch and, in effect, it is this branch that is responsible for their negotiation, signing, and ratification. The Legislative Assembly, for its part, is only responsible for the function of approving or disapproving them.\" In accordance with the above, this Chamber has indicated that it is essential that the text submitted for approval be a complete, correct, and exact text, otherwise a substantial defect occurs in the legislative procedure and in the expression of the will of the parliamentary body…*\n\n*… Finally, it is clear from judgment No. 2006-06011 that the Chamber ordered that: \"In this regard, this Court reiterates that it is essential that the text submitted for approval be complete, clear, exact, delimited, so that there is no doubt whatsoever as to the object of the International Law obligation that our country assumes, and as a guarantee of the principles of legal certainty, publicity, and transparency.\" (the bold is not in the original)\"*\n\n*Therefore, it is reiterated that the determination of the Legislative Assembly was appropriate, in the sense of retracting the legislative procedure and urging the Executive Branch to provide a new certified copy of the convention, with its full and complete text, in order to seek the rectification of the procedure. Notwithstanding the foregoing, it must be indicated that an essential defect in the legislative procedure is still noted. This is because, upon reviewing the draft that was published in Digital Supplement No. 51 of La Gaceta No. 78 of April 23, 2012 (see it at http://www.gaceta.go.cr/pub/alcances/ALCA_2012.html), it is verified that the text published at that time contained the errors or omissions already noted (that is, several of the articles published were incomplete, mutilated, or inconclusive). To the detriment that, upon reviewing the legislative file, it is not accredited that the draft was published again in the Official Gazette, but this time fully or completely intact, or that any kind of correction or clarification was published, in accordance with the provisions of Articles 116, 117, and 121 of the Regulations of the Legislative Assembly. This prior to the draft being the subject of new study, discussion, and opinion by the aforementioned Committee and discussion and approval by the Legislative Plenary. From which it can be derived that an infringement of the principle of publicity has been incurred.\"*\n\nConsequently, regarding the antecedent cited above, it is appropriate to highlight the following characteristics that explain the *ratio iuris* of the judgment:\n\n1. The certified copy of the Convention to be approved (Convention concerning Decent Work for Domestic Workers) was sent incomplete *ab initio* by the Executive Branch, and the corresponding publication in La Gaceta was equally defective.\n2. The Chamber admitted as appropriate that the Legislative Assembly sought the correction of the legislative procedure and, in particular, to retract the procedure, so that the Executive Branch would provide a new certified copy of the aforementioned convention.\n3. The publication of the Convention only occurred once, before the Committee received the new certified copy correctly, without proceeding with a new publication in La Gaceta; quite the opposite, it settled for the first publication that contained the errors noted from the outset (several of the articles published were incomplete, mutilated, or inconclusive). Thus, the intended correction of the procedure ordered by the Legislative Assembly itself did not actually occur.\n\nIn the case *sub examine*, it must first be emphasized that the error of the International Relations Committee analyzing the draft in question based on an incomplete certified copy did not occur. On the contrary, it is clear from the case file that such Committee and the hearings granted to the various agencies and persons consulted were based on a correct version of the draft in question. However, in the electronic publication of La Gaceta No. 220 of November 14, 2012, Supplement No. 180, (http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-2_14_11_2012.pdf) 2 folios corresponding to the First Annex are missing. Indeed, in the digital La Gaceta, the absence in the publication of the page described as EU/CENTR-AM/Annex I/es 544, visible at folio 1006 of the certified copy sent by the Assembly in Volume III of the draft in question, is verified, as well as folio 1572 of the certified copy sent by the Assembly in Volume V. Both folios correspond to Annex I, which deals with the elimination of customs tariffs by reason of the Agreement.\n\nIn the case of folio 1006 of the certified copy, the omission of its publication implies that the following products from the EU Party list were not published:\n\n| 5515 91 | -- Mixed exclusively or principally with synthetic or artificial filaments: | | | |\n| 5515 91 10 | --- Raw or bleached | 8 | A | |\n| 5515 91 30 | --- Printed | 8 | A | |\n| 5515 91 90 | --- Others | 8 | A | |\n| 5515 99 | -- Others: | | | |\n| 5515 99 20 | --- Raw or bleached | 8 | A | |\n| 5515 99 40 | --- Printed | 8 | A | |\n| 5515 99 80 | --- Others | 8 | A | |\n| 5516 | Woven fabrics of artificial staple fibres: | | | |\n| | - Containing 85 % or more by weight of artificial staple fibres: | | | |\n\nFor its part, regarding folio 1572 of the certified copy, the omission meant that the following products from the CA Party's List were not published:\n\n| Código SAC 2007 | Descripción | Tasa base CA | Categoría | Tasa base | | | | | Comentarios |\n| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |\n| 5516 11 00 | -- Unbleached or bleached | 8 | A | | | | | | |\n| 5516 12 00 | -- Dyed | 8 | A | | | | | | |\n| 5516 13 00 | -- Of yarns of different colours | 8 | A | | | | | | |\n| 5516 14 00 | -- Printed | 8 | A | | | | | | |\n| | - Containing less than 85% by weight of artificial staple fibres, mixed mainly or solely with synthetic or artificial filaments: | | | | | | | | | |\n| 5516 21 00 | -- Unbleached or bleached | 8 | A | | | | | | |\n| 5516 22 00 | -- Dyed | 8 | A | | | | | | |\n| 5516 23 | -- Of yarns of different colours: | | | | | | | | |\n\nIRON ORES AND CONCENTRATES, INCLUDING ROASTED IRON PYRITES (PYRITE ASH)\n\n- Iron ores and concentrates, other than roasted iron pyrites (pyrite ash):\n\n- - Non-agglomerated\n\n- - Agglomerated\n\n2601.20.00\n- Roasted iron pyrites (pyrite ash)\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2602.00.00\nMANGANESE ORES AND CONCENTRATES, INCLUDING FERRUGINOUS MANGANESE ORES AND CONCENTRATES WITH A MANGANESE CONTENT OF 20% OR MORE BY WEIGHT, CALCULATED ON THE DRY PRODUCT\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2603.00.00\nCOPPER ORES AND CONCENTRATES\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2604.00.00\nNICKEL ORES AND CONCENTRATES\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2605.00.00\nCOBALT ORES AND CONCENTRATES\n\n| 0 | A | 0 | 0 |\n\n| 2604.00.00 | MINERALES DE ALUMINIO Y SUS CONCENTRADOS | 0 | A | 0 | 0 | 0 | 0 | 0 | |\n| 2605.00.00 | MINERALES DE PLOMO Y SUS CONCENTRADOS | 0 | A | 0 | 0 | 0 | 0 | 0 | |\n\nNonetheless, in the printed version of La Gaceta No. 220 of November 14, 2012, Supplement No. 180 (which is only distributed to certain libraries), this Tribunal confirms that the page described as EU/CENTR-AM/Anexo I/es 544 was indeed duly published in that version.\n\nThus, in the printed version there would only be an error regarding the omission of publishing folio 1572 of the certified copy sent by the Assembly in Volume V.\n\nIn any case, it is clear that both the International Relations Committee and the consulted agencies and persons had at their disposal from the outset the integral and complete version of the Agreement under study.\n\nNow, this Court has repeatedly pointed out the importance of making known the bills that have been submitted for its consideration. However, it is no less true that the Chamber has interpreted the requirement for the publication of a bill in light of what is truly sought: its publicity. Thus, in judgment number 2002-8190 of 11:12 a.m. on August 23, 2002, it was stated:\n\n\"*V.- Publication of the bill approving the Treaty. Publication in La Gaceta of the bills discussed in the Legislative Assembly is an instrument that can foster popular participation in the adoption of major national decisions, in addition to constituting a guarantee of transparency in the law-making function. Although the Political Constitution omits any reference to this requirement, the Regulation of the Legislative Assembly does so in its articles 116, 117, and 121. Of these, 117 is the one containing the general rule, as follows:*\n\n*\"Article 117.- Filing Decrees*\n\n*In the Archives Department, filing decrees for matters shall be drafted and the original case file shall be formed, as well as the files for the members of the respective Committee. This Department shall send a copy of these matters to the Imprenta Nacional for publication in the Official Gazette.\"*\n\n*As can be appreciated, the Regulation of the Legislative Assembly expressly provides for the publication of the bills that the Legislative Assembly hears, as a self-regulation rule approved by the Assembly itself to guarantee the transparency of its actions when performing legislative functions. Publicity must be understood as an essential requirement of the legislative procedure, as it directly involves the democratic principle inherent to the creation of general norms. The foregoing does not imply that the publicity requirement can only be satisfied by the publication of the complete text of the bill, since eventually, upon the approval of a motion to dispense with formalities (moción para la dispensa de trámites), a summary of the bill's existence in the Official Gazette could be sufficient to give effective publicity to the bill.\"*\n\nFurthermore, in judgment number 2002-03458 of 3:54 p.m. on April 16, 2002, this Court stated the following:\n\n\"*V.- On the publication of the bill in the Official Gazette. On the other hand, it is worth discussing whether the approval of a motion to dispense with formalities (moción de dispensa de trámites) of publication and waiting period in Legislative Plenary session number 91 of November fourteenth, two thousand one, regarding the bill approving the \"International Convention for the Suppression of the Financing of Terrorism\", as well as five other initiatives (cf. folio 37 of legislative file number 14,556), is consistent with the constitutionality parameter. After the Chamber conducted a search through the editions of La Gaceta, it was determined that this bill, although not published in its entirety, was the subject of a notice reporting on the legislative agreement that dispensed with the referred formalities, and indicating the size and location of the legislative file, for anyone who wished to consult it. (La Gaceta number 230 of November thirty, two thousand one, page 7). In the Chamber's view, this action prevented a violation of essential rules of the legislative procedure. Publication in La Gaceta of the bills discussed in the Legislative Assembly is an instrument that can foster popular participation in the adoption of major national decisions, in addition to constituting a guarantee of transparency in the law-making function. Although the Political Constitution omits any reference to this requirement, the Regulation of the Legislative Assembly does so in its articles 116, 117, and 121. Of these, 117 is the one containing the general rule, as follows:*\n\n*\"Article 117.- Filing Decrees*\n\n*In the Archives Department, filing decrees for matters shall be drafted and the original case file shall be formed, as well as the files for the members of the respective Committee. This Department shall send a copy of these matters to the Imprenta Nacional for publication in the Official Gazette.\"*\n\n*As can be appreciated, the Regulation of the Legislative Assembly expressly provides for the publication of the bills that the Legislative Assembly hears. This requirement must be understood as essential, as it directly involves the democratic principle inherent to the legislative function. Notwithstanding the foregoing, in this case the Legislative Assembly has not harmed this procedural requirement, because although the Assembly agreed to relieve this bill of the formality of its publication, it decided that a notice regarding the existence of the bill in question be published in La Gaceta, inviting anyone interested in reading it to consult it at the Assembly, where it would be made available to the public. This Chamber is of the opinion that this latter determination allowed access, by the public, to legislative file 14,556, thus enabling popular participation in the discussion of the referred bill. It is not superfluous to highlight that, although the dispensation with formalities (dispensa de trámites) mentioned in article 35.5.d) of the Regulation of the Legislative Assembly must be understood in light of the more explicit rule of article 177 ibidem, in the sense that said dispensation is of the formality of review in committee, and not a generic dispensation of \"all\" legislative formalities, since those provided for in the Political Constitution and in the same Regulation, as minimum guarantees of respect for the democratic principle, cannot be dispensed with, not even by agreement of the Assembly itself. Obviously what happened in this case is that—as was already stated above—the \"integral\" publication of the bill in the Official Gazette was dispensed with; giving it publicity was not dispensed with, which would be unconstitutional, as it would constitute an excuse for non-compliance with an essential formality. Therefore, this Chamber considers that in the procedure followed for the discussion of this bill, no essential formalities have been violated, so it is appropriate to proceed to discuss the merits of the proposal.*\"\n\nAlways related to the issue of publicity, in judgment number 2008-018218 of 6:26 p.m. on December 10, 2008, it was indicated:\n\n\"*Having examined the documentation sent by the Executive Branch, the seal of the Ministry of Foreign Affairs and Worship is noted on the twenty-two pages of the copy of the Convention, from which a clear inaccuracy in the aforementioned certification can be inferred, which only refers to \"the foregoing seven photocopies.\" This situation requires the Chamber to determine the nature and scope of the error in said certification and its relevance from a constitutional point of view, based on the special circumstances of the specific case. Firstly, it is noted that the text of the Convention published on the official website of the Inter-American Tropical Tuna Commission (see http://www.iattc.org/PDFFiles2/Convencion_de_Antigua_Jun_2003.pdf), is identical to the text of it attached to the legislative file, which contains the same number of pages, twenty-two in total. This verifies that the certification in question contains a material defect, as instead of stating \"the foregoing seven photocopies\" it should have stated \"the foregoing twenty-two photocopies.\" Despite this error, it is clear that both within the Special Permanent Committee on the Environment and in the Plenary, the deputies had at their disposal the complete text of the Convention, which was published in its entirety in La Gaceta number 187 of September 29, 2006, for which reason not the slightest hint of doubt arose on the part of the legislators regarding its total content. Furthermore, no confusion was caused to the private organizations and public agencies consulted, given that the corresponding consultations specified the date of publication of said bill in the Official Gazette La Gaceta (see folios 38, 39, 47, 48, 49, 50, 54, 56, 58, 60, 62, 64, 66, 92 and 106 of the legislative file), which in turn rules out an injury to the principle of publicity. For these reasons, this Court concludes that at no time did the Executive Branch fail in its obligation to submit the complete documentation to the Legislative Assembly for the purpose of allowing it to clearly approve the perfectly defined object of what is being sought to elevate to a legal norm with a rank higher than law. Hence, in the specific case, the mistake committed constituted a mere material defect that cannot lead to the nullity of the legislative process and, therefore, does not require the implementation of any corrective mechanism. The foregoing does not prevent a call for attention so that in the future, this type of mistake be prevented, given the legal value of the certifications issued by the Ministry of Foreign Affairs and Worship, which must be entirely exact so that there is no doubt whatsoever about the absolute fidelity of the texts of the conventions submitted for approval in the Legislative Assembly.*\"\n\nConsequently, regarding the publication requirement in La Gaceta established by article 117 of the Regulation of the Legislative Assembly and the jurisprudence of the Chamber, it is inferred that the crux of the matter consists of analyzing, according to the specific case, to what extent a mistake in publication leads to a defect in publicity, from which the general public has a confused understanding of the content of a bill to be approved in the Legislative Assembly or their informed participation in its discussion is restricted. It is not, then, a matter of applying a rigid formalism, alien to the circumstances of the case, but of employing legal hermeneutics in accordance with the rules of sound criticism, so that the norms are interpreted in the way that best guarantees the achievement of the purpose or purposes they pursue.\n\nIn this case, unlike the subject of judgment number 2013-006969, there is no injury to the principle of publicity affecting its essential content, that is, that actually gives rise to a state of current and real confusion regarding the content of the legislative bill under discussion, in such a way that popular participation in the adoption of major national decisions is hindered. Precisely, the publicity of the procedure seeks to safeguard that the power to legislate resides in the people and that the deputies are only their representatives (article 105 of the Constitution), as well as the projection of parliamentary activity outward as a guarantee established in article 117 of the Political Constitution (see Judgment No. 2000-3220). In this context, it must be emphasized that from the amendment to article 9 of the Political Constitution (Law N° 8364 of July 1, 2003, published in La Gaceta N° 146 of July 31, 2003), the characteristic of \"participatory\" was introduced as a constitutive element of the Government of the Republic. This quality enhances at the constitutional level the fundamental purpose of publicity: to promote the intervention of the citizenry in the fundamental decisions of the State. If this purpose is not violated and it is noted that there has been no actual obstruction to popular participation, then an error in the publication cannot by itself constitute an essential defect in the legislative procedure. In the case at hand, contrary to what occurred in judgment number 2013-006969, the International Relations Committee always had the correct and complete version of the text of the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other\". Likewise, it is fully verifiable that the deputies of the Legislative Assembly at all times had the full text of the Agreement and based their discussions, motions, and the will expressed in their reports and votes on it. Likewise, the authorities and persons who were granted the respective hearings always had the complete text of the Agreement at their disposal. Thus, it is not seen that an injury to the essential content of the principle of publicity derived from the error in publication, so no defect of unconstitutionality has occurred. The case is different when not even within Parliament itself the full text of the bill to be approved has been available, or when it contains errors, or when the legislator itself has introduced important changes to the original version of a bill while it is being discussed in a committee (which in this case would have been, in any event, improper because article 361 of the Agreement does not permit unilateral reservations or interpretative declarations to it).\n\nAs a corollary to the foregoing, regarding the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other\" no essential defects in the legislative procedure are noted.\n\n**VIII.- On the merits of the bill.** Before making some observations on the merits of the bill \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" it must be emphasized that, according to the provisions of article 101 of the Law of Constitutional Jurisdiction, the opinion of this Chamber will only be binding insofar as it establishes the existence of unconstitutional formalities.\n\n**IX.-** The \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" far from being solely a typical Free Trade Agreement between the regions involved, was born under the figure of an \"Association Agreement\" to which, in addition to the commercial component, two more elements that complement and accompany it were added: \"Political Dialogue\" and \"Cooperation.\"\n\nUnder this understanding, this international instrument seeks to establish an interregional association between Central America and the European Union based on three fundamental pillars: **1) \"Political Dialogue\"**: it seeks to create a privileged political association between both regions based on common values and interests set forth in the Agreement (among them, disarmament, weapons of mass destruction, fight against terrorism, serious crimes of international concern, financing for development, migration, environment, citizen security, good governance in fiscal matters, among others); **2) \"Cooperation\"**: the Agreement is oriented to enable the necessary cooperation mechanisms within the areas of interest of the Parties (e.g., Democracy, Human Rights, and Good Governance; Justice, Freedom, and Security; Social Development and Social Cohesion; Migration; Environment, Natural Disasters, and Climate Change; Economic and Commercial Development; Regional Integration; Culture and Audiovisual Cooperation; Knowledge Society); **3) \"Trade\"**: as stated, this section constitutes a free trade agreement. This last commercial pillar has the following content: Titles I, XII, and XIII contain the initial and institutional provisions; Title II regulates matters related to Trade in Goods; Title III establishes Trade in Services and Establishment; Title IV refers to Current Payments and Capital Movements; Title V regulates matters related to Public Procurement; Title VI governs Intellectual Property; Title VII contains provisions related to Trade and Competition; Title VIII regulates matters concerning Trade and Sustainable Development; Title IX governs Regional Economic Integration; Titles X and XI refer to the topic of Dispute Settlement and Mediation; finally, Title XIV contains provisions related to Exceptions.\n\nIn addition to the three pillars described above, the text of the Association Agreement also enshrines several common rules or norms that apply to each of these three components. These rules are characteristic of all international treaties and are called in doctrine \"Rules of the Law of Treaties.\" In this agreement, these rules are set forth in the first and fifth parts of the Agreement.\n\nIn addition to the matter of the approval of the Association Agreement, the bill submitted for consultation contemplates the ratification by our country of an Amendment to the \"Convention on International Trade in Endangered Species of Wild Flora and Fauna\", since its approval is part of the political negotiation with the European Union and was a commitment derived from the Association Agreement (see explanatory memorandum of legislative file No. 18,563 and article 287.3 of the Association Agreement). Likewise, in bill No. 18,563 a Council of Land Border Posts is created and is endowed with the necessary financial resources, creating an exit tax for land ports and a tax on each customs export declaration filed at land border posts.\n\nFinally, in the bill, it is decided to entrust the Ministry of Foreign Trade with the country's representation before the international organization known as the \"Organisation for Economic Co-operation and Development (OECD)\".\n\nAfter clarifying the content of the bill in question, it is necessary to go into detail on each of the Parts that make up the Association Agreement.\n\n**Preamble:**\n\nThe motivations and general considerations in the Preamble of the Agreement form part of it, since although they do not generate direct legal obligations, they are useful for the purposes of interpreting the corresponding legal instrument.\n\nAmong such considerations, the following merits special reference:\n\n\"*RECOGNIZING the progress achieved in the Central American economic integration process, such as the ratification of the Framework Agreement for the Establishment of the Central American Customs Union and the Treaty on Investment and Trade in Services, as well as the implementation of a jurisdictional mechanism that guarantees compliance with regional economic legislation throughout the Central American region;*\"\n\nIn this regard, it should be noted that no express reference is made to the Central American Court of Justice, but rather an indeterminate reference to \"a jurisdictional mechanism\", so that the mere approval of the Agreement does not imply that Costa Rica recognizes the competence of said court.\n\n**Parts I and V of the Agreement:**\n\nAs is traditional in this type of international convention, Parts I and V of the Association Agreement contain common norms or rules that apply to each of the three pillars of the Agreement, and which are usually known as rules of the Law of Treaties.\n\nTitle I of Part I brings together the principles from which the Agreement must be interpreted and read; some of them are: the democratic principle, respect for fundamental rights, sustainable development, good governance, the Rule of Law, the rule of law, separation of Powers, transparency and accountability, efficiency, prevention and fight against corruption (Article 1). On the other hand, the main objectives of the Agreement are cited: to strengthen relations between the Parties, to develop a privileged political partnership, to improve bi-regional cooperation, to expand the trade relationship, to strengthen the progressive process of regional integration, good neighborly relations and the principle of peaceful settlement of disputes, to improve the level of good governance, to promote the increase of trade and investment (Article 2). \n\nIn Title II of this Part I, the topic of the institutional framework is covered, which is formed by the creation of an Association Council, an Association Committee, a Parliamentary Association Committee, a Joint Consultative Committee, and different subcommittees. The Association Council will be composed of representatives of the European Union Party and of each of the Republics of the Central American State Parties at the ministerial level, in accordance with the internal provisions of each State. The Presidency of said body will be exercised alternately by a representative of the European Union Party and another representative of Central America (Article 5). It is granted the power to issue its own regulations and its primary task is to supervise the fulfillment of the objectives of this Agreement and its application. For this purpose, a meeting at the ministerial level is planned every two years, with the possibility of meeting at the level of Heads of State when the Parties so agree (Article 4). Among its most relevant powers, we can cite the following:\n\n1. Examine any major issue arising under the framework of the Agreement, as well as any other bilateral, multilateral, or international issue of common interest. (Article 4.2)\n\n2. Examine the proposals and recommendations of the Parties aimed at improving the relations established under the framework of the Agreement. (Article 4.3)\n\n3. Formulate such recommendations as it may deem appropriate. (Article 6.3)\n\n4. Elaborate and adopt the \"Rules of Procedure\" that will govern the dispute settlement procedures set out in the Association Agreement. (Article 319)\n\n5. It shall adopt the Rules of Procedure and the Code of Conduct at its first session and may subsequently modify them. (Article 328)\n\n6. When dealing with trade-related issues, it may:\n\na) modify, in fulfillment of the objectives of Part IV of this Agreement:\n\ni) the lists of goods established in Annex I (Elimination of Customs Duties), in order to incorporate one or more goods into the tariff elimination program;\n\nii) the lists established in Annex I (Elimination of Customs Duties), in order to accelerate the tariff elimination;\n\niii) Appendices 1, 2, and 3 of Annex I (Elimination of Customs Duties);\n\niv) Appendices 1, 2, 2A, 3, 4, 5, and 6 of Annex II (Concerning the definition of the concept of \"originating products\" and methods of administrative cooperation);\n\nv) Annex XVI (Public procurement);\n\nvi) Annex XVIII (Protected geographical indications);\n\nvii) Annex XIX (List of products referred to in Article 306, paragraph 4);\n\nviii) Annex XXI (Subcommittees);\n\nb) issue interpretations of the provisions of Part IV of this Agreement; and\n\nc) take any other action in the exercise of its functions as agreed by the Parties. (Article 345)\n\nIt is important to highlight that the decisions adopted by said body will be binding for the Parties, and will be taken by common agreement; and in the case of the Central American countries, their consensus is required for the adoption of decisions and recommendations (Article 6). That is, the obligation is not imposed on a country to comply with a certain decision or recommendation if it has not previously given its express consent.\n\nTo fulfill such tasks, the Association Council will receive the collaboration of smaller units also created in the Association Agreement. Some of these units are: the Association Committee (which will also adopt its decisions in accordance with the conditions established in Articles 4 to 6); and the specific Subcommittees by subject matter (Articles 7 and 8). Likewise, a Parliamentary Association Committee is created, which will be constituted by members of the European Parliament and the Central American Parliament (PARLACEN). In the case of republics that are not part of PARLACEN (such as our country), it is provided that each State will designate its own representatives (Article 9). A Joint Consultative Committee is also established, which will have consultative functions and, as an important fact, must present to the Association Council the opinions of civil society organizations related to the application of the Agreement (Article 10). Lastly, reference is made to civil society, indicating that meetings of representatives of civil societies will be promoted to inform them about the application of the Agreement (Article 11). Due to the particular interest this topic generates, the participation of civil society will be developed later.\n\nOnce the proposed organizational structure is described, it is pertinent to refer specifically to the powers held by the Association Council formed for the Agreement under study and the similarity of attributions and differences it holds in relation to other instruments of the same nature that have been previously adopted by our country and also the subject of pronouncements by this Court. \n\nIn the case of the \"Free Trade Treaty between Costa Rica and the Caribbean Community\" approved by Ley 8455, the creation of a Joint Council had been provided with powers almost identical to those also granted in the Free Trade Treaty between Central America and Chile approved by Ley 8055, and very similar to those under study, which consisted of:\n\n\"**…** *this Joint Council is responsible for ensuring the fulfillment and correct application of the provisions thereof, for which it will issue recommendations; it may evaluate the results achieved in its application; resolve disputes that arise regarding its interpretation or application; supervise the work of the established or created committees and hear any other matter that could affect its operation. This Council, states Article I.06, may modify, in the interest of fulfilling the objectives of the Treaty: a) the list of goods of a party contained in Annex III.04.2 (Tariff Elimination) with the purpose of incorporating one or more excluded goods into the Tariff Elimination Program; b) the timeframes established in Annex III.04.02 (Tariff Elimination) in order to accelerate the tariff elimination; c) the specific rules of origin of Annex IV.03; d) the uniform regulations of the Customs Procedures*.\"\n\nIn a similar sense, in the Free Trade Treaty between the Dominican Republic, Central America and the United States approved by Costa Rica according to Ley 8622, the Free Trade Commission has the following powers:\n\n\"*Article 19.1: The Free Trade Commission*\n\n*1. The Parties establish the Free Trade Commission, made up of the representatives of each Party at the Ministerial level, referred to in Annex 19.1, or by the persons they designate.*\n\n*2. The Commission shall:*\n\n*(a) supervise the execution of the Treaty;*\n\n*(b) supervise the further development of the Treaty;*\n\n*(c) seek to resolve disputes that could arise regarding the interpretation or application of this Treaty;*\n\n*(d) supervise the work of all committees and working groups established in accordance with this Treaty; and*\n\n*(e) hear any other matter that could affect the operation of the Treaty.*\n\n*3. The Commission may:*\n\n*(a) establish and delegate responsibilities to committees and working groups;*\n\n*(b) modify in compliance with the objectives of this Treaty:*\n\n*(i) the tariff elimination schedules subject to Annex 3.3 (Tariff Elimination), in order to accelerate the tariff reduction;*\n\n*(ii) the rules of origin established in Annex 4.1 (Specific Rules of Origin);*\n\n*(iii) the Common Guidelines referred to in Article 4.21 (Common Guidelines); and*\n\n*(iv) Annexes 9.1.2(b)(i), 9.1.2(b)(ii) and 9.1.2(b)(iii) (Public Procurement);*\n\n*(c) issue interpretations on the provisions of this Treaty;*\n\n*(d) seek the advice of non-governmental persons or groups; and*\n\n*(e) adopt any other action for the exercise of its functions as agreed by the Parties. 19-2*\n\n*4. Each Party shall implement, in accordance with its applicable legal procedures, any modification pursuant to subparagraph 3(b) within the period agreed upon by the Parties.*\n\n*5. The Commission shall establish its rules and procedures. All its decisions shall be taken by consensus, unless the Commission decides otherwise.*\n\n*6. The Commission shall meet at least once a year in ordinary session, unless the Commission decides otherwise. The ordinary sessions of the Commission shall be chaired successively by each of the Parties.*\n\n*Article 19.2: Free Trade Treaty Coordinators*\n\n*1. Each Party shall designate a Free Trade Treaty Coordinator, in accordance with the provisions of Annex 19.2.*\n\n*2. The coordinators shall work jointly in developing agendas and other preparations for the Commission meetings and shall provide appropriate follow-up to the Commission's decisions…\"*\n\nSo the Association Council envisaged to administer the agreements signed in this negotiation is not very different from those previously approved by our country, which even has less involvement in dispute settlement than the bodies cited above.\n\nIn addition to the above, this Court, referring to the scope of this type of authority and the binding nature of its decisions for the country, specifically stated:\n\n\"*On this point, it is clear from a reading of the Treaty that the Free Trade Commission is a collegial body composed of representatives of each Party at the ministerial level or by the persons each one designates, and its function is to supervise the execution of the treaty, supervise its further development, resolve disputes that may arise over the interpretation or application of the treaty, supervise the work of the committees and working groups established, and hear any other matter that might affect the functioning of the agreement. Among its powers is also issuing interpretations of the treaty's provisions, but not modifying its content as the consulting deputies claim. It is clear that such authority was not granted in the Treaty as derived from Article 19.1, so this Chamber cannot conclude anything beyond what the text of the trade agreement establishes. Furthermore, even though the consulting parties consider that said Commission assumes legislative and regulatory powers, this Chamber has referred on other occasions to the legal nature of the norms issued by this type of Commission, understanding that they are lesser-rank protocols in accordance with the provisions of Article 121, subsection 4) of the Political Constitution. Reaffirming the above, the Free Trade Treaty establishes in Anexo 19.1.4 that: \"In the case of Costa Rica, the decisions of the Commission pursuant to Article 19.2.3(b) shall be equivalent to the instrument referred to in Article 121.4, third paragraph (lesser-rank protocol), of the Political Constitution of the Republic of Costa Rica.\" Considering that nature, it cannot be considered that these are unconstitutional powers, and so warned this Chamber in ruling 2000-8404 of ten o'clock on September twenty-second, two thousand, in which it stated:*\n\n***\"V.- On the Free Trade Commission:** In Article 18.01 of the Treaty, a Free Trade Commission is established which shall be responsible for ensuring compliance with and the correct application of the provisions of this Treaty; for evaluating the results achieved in the application of the Treaty; for resolving disputes that arise regarding the interpretation or application of the Treaty; for supervising the work of the committees established or created pursuant to the Treaty; and for hearing any other matter that might affect the functioning of this Treaty. This Commission, the article indicates, may modify, in order to fulfill the objectives of the Treaty: a) a Party's list of goods contained in anexo 3.04 (Tariff Elimination Program) in order to incorporate one or more goods excluded from the Tariff Elimination Program; b) the timeframes established in Anexo 3.04 (Tariff Elimination Program) in order to accelerate tariff elimination; c) the specific rules of origin of Anexo 4.03; d) the uniform regulations; e) Anexo 9.01 of services sectors or subsectors in order to incorporate new services sectors or subsectors; f) anexos I, II, and III of Chapter 11 (Cross-Border Trade in Services) and the list of entities of a Party contained in Anexo 16.01 (Entities) in order to incorporate one or more entities into the scope of application of Chapter 16 (Public Procurement). The Commission official, in the specific case of Costa Rica, is the Minister of Foreign Trade or its successor. Now, in Anexo 18.01 (4), it is expressly established that for the case of Costa Rica, the agreements reached by the Parties shall be equivalent to the instrument referred to in Article 121.4, third paragraph of the Political Constitution; an instrument which has been called \"Menor-Rango Protocol\". On this matter, the Chamber has stated:*\n\n*\"Lesser-rank protocols are those which, without adding substantial commitments or limitations to the activity of states, develop and even modify purely procedural norms that do not affect the substance of the treaty. Typical cases of lesser-rank protocols are modifications to compliance deadlines and other similar measures, provided that these modifications are, as stated, foreseen in the main treaty\" (Ruling No. 03388-98 of sixteen hours thirty-nine minutes on May twenty-sixth, nineteen ninety-eight).*\n\n*In relation to the specific case, the Chamber considers that both the Free Trade Commission being created in the Treaty under study, and the powers granted to it therein, are not unconstitutional to the extent that they can be considered as lesser-rank protocols in the terms indicated supra, or well, and to the degree and insofar as through the exercise of these powers, substantive and fundamental decisions are not being made that must necessarily be analyzed by the Legislative Assembly in accordance with the constitutional powers held by this Branch of the Republic. From this perspective, it is not unconstitutional for the representative of Costa Rica to participate and carry the voice of the National Government on matters related to the Treaty, as long as the country is not committed to decisions that necessarily require legislative approval and, of course, subsequent constitutional oversight exercised by the Constitutional Chamber. (ruling No. 2000-8404)*\n\n*The previous precedent is fully applicable to the specific case, since the norm analyzed is very similar to the one discussed here, which leads the Chamber to conclude that the functions or powers established for the Free Trade Commission in the Free Trade Treaty are not unconstitutional per se, since it cannot be inferred from the articles of the Treaty that the intention is for said Commission to alter its provisions, but only to interpret them. Furthermore, the guarantee always exists that the representative of Costa Rica could in no way commit our country to any matter requiring legislative approval.*\n\n*Now, one aspect that must be carefully analyzed is the accusation by the Defensoría to the effect that said Commission can impose obligations on Costa Rica even against its will, as it is a supranational body. On this particular point, it must be taken into account that in light of the provisions of numeral 19.1.5 of the Free Trade Treaty, the decisions adopted by said Commission are taken by consensus, unless the Commission itself decides otherwise. While the Treaty does not clarify what is meant by \"consensus,\" the preamble itself expressly recognizes the Marrakech Agreement establishing the World Trade Organization, which does clarify the meaning of said concept. In light of the provisions of Article IX, paragraph 1, footnote 1, of the Marrakech Agreement, \"the body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member present at the meeting when the decision is taken, formally objects to the proposed decision.\" This means that in the commercial sphere established by the Free Trade Treaty and the WTO, the consent of all Parties present is required to adopt a decision, that is, there is a kind of veto power, no matter how small and weak a country may be, if it opposes what the others decide against its will. For practical purposes, this means that no decision affecting Costa Rica can be adopted if its representative opposes it, meaning the State is not ceding its sovereignty. It is for this reason that the Commission is not considered a supranational body either, since it cannot impose obligations beyond the will of the States, neither in the process of \"administration\" of the treaty, nor when it intervenes in the State-State dispute resolution mechanism, and in this latter case, it only issues recommendations. On a similar matter, through ruling 1079-93 of fourteen hours forty-eight minutes on March second, nineteen ninety-three, the Chamber indicated:*\n\n*\"B) The foregoing forces recognition that the expression \"community legal order\" (ordenamiento comunitario), although unfortunate, only acquires meaning, in the context of that subsection, if \"community\" is understood as that normative body which, although created through typical sources of the Law of Nations, such as treaties, actually has a \"supranational\" character, in that it is capable of imposing on the State Parties obligations, duties, burdens, or limitations beyond those agreed upon and even against their will, for example, through decisions adopted by a majority; this is something completely different from merely international orders, in which States commit only to what they agree to by treaty, or, if the treaty also creates some type of international body, the decisions in that body are either not binding, or if they are, they must be taken by unanimity, that is, with the express acceptance of the Costa Rican State, through its legitimate representatives competent for that purpose. It is true that the inclusion of the concept \"community legal order\" (ordenamiento comunitario) in said constitutional norm was made by the Legislative Assembly acting as a constituent power (by Law Nº 4123 of May 30, 1968), having in mind the Central American integration or Common Market process, but it would be contradictory, and therefore unconstitutional, to deduce from this that the Constitution imposes an aggravated procedure for the approval of the instruments of that process, desired by Costa Rica and closer and more natural as it occurs in the geopolitical and historical sphere of the Great Central American Homeland, than in other, more distant and less intense cases where competences of the Costa Rican State are also assigned or transferred to an extra-national order.\" (The bold text is not part of the original)*\n\n*For the foregoing reasons, and taking into consideration that the decisions of the Commission cannot be imposed beyond the will of the States because they are adopted by consensus, this Chamber finds no unconstitutionality whatsoever regarding this aspect.*\n\n*Even though the consulting deputies claim that the decisions of the Commission are not necessarily adopted by consensus because Article 19.1.5 establishes that said body may agree on another form of voting, the Chamber also does not consider this unconstitutional. It is clear that any decision of the Commission that seeks to vary the voting method must be adopted by consensus, so the voting mechanism could not be varied if our country's representative does not agree, thereby obviously maintaining the power to guarantee that no decision is imposed on Costa Rica against its interests. However, a warning is made that said representative could not authorize a change in the voting method if it can force a decision contrary to the will of our State, and provided that it does not commit the country to decisions that necessarily require legislative approval. Therefore, the issue in question lies in the obligations and controls that the State imposes on its representative. Likewise, the argument of the consulting parties is not acceptable that there is no guarantee that the decisions made by the Free Trade Commission will be in accordance with the Constitution, for precisely therein lies the importance of the role played by our representative, who could not at any time commit our country beyond what our Fundamental Charter permits. In any case, if the Constitutional Jurisdiction Law was not included as a \"non-conforming measure,\" it does not mean that the oversight of this Chamber provided for in the Political Constitution (Articles 10 and 48) has been repealed, but rather, on the contrary, it was not considered incompatible with the Treaty, and therefore its inclusion was not necessary. The consulting parties must be clear, as will be seen throughout this ruling, that in the list of non-conforming measures, only that national legislation which, despite being contrary to the provisions of the Treaty, is intended to be kept in force, is included. This does not mean that what is not included there is understood to be repealed.*\" (ruling No. 2007-9469)\n\nIn accordance with the foregoing, the International Agreement under study presents no defect of unconstitutionality whatsoever, since as has been accredited, the Association Council does not have the capacity to impose on the State Parties obligations, duties, burdens, or limitations beyond those agreed upon and never against their will, because this requires consensus, that is, the express acceptance of the Costa Rican State through its legitimate representatives competent for that purpose, besides the fact that its decisions revolve around the administration and implementation of the negotiated commercial matters.\n\nAs for the final provisions, Part V of the Agreement clarifies issues such as the definition of the Parties (where what draws attention is the enumeration of the cases in which the Central American countries must act jointly (in decision-making through the bodies contemplated in Title II (Institutional Framework) of Part I of this Agreement, in the implementation of the obligations set forth in Title IX (Regional Economic Integration) of Part IV of this Agreement, in the implementation of the obligation to establish a Central American Regulation on Competition and a competition authority, and in the implementation of the obligation to establish a single point of access at the regional level, in accordance with Article 212, paragraph 2, of Title V (Public Procurement) of Part IV of this Agreement); otherwise, for any other matter, the Central American countries will assume obligations and act individually -Article 352-), entry into force, where it is explained that the rule is that the Trade Agreement (Part IV) may govern independently between the European Union and each Central American country that ratifies it, but not the entirety of the Association Agreement, which requires the accession and ratification of all Parties (Article 353), its indefinite duration and the possibility of being denounced by any country at any time, ceasing to be in force six months later (Article 354), fulfillment of obligations (Article 355), rights and obligations (Article 356), exceptions (Article 357), evolutive clause referring to the possibility of expanding or complementing the Agreement through the conclusion of other agreements on specific activities (Article 358), accession of new members and their particular rules (Article 359), territorial application, expressly clarifying that for the case of Central America, said Agreement would apply in *\"the territories of the Republics of the Central American Party, in accordance with their respective national laws and International Law\"* (Article 360), and the impossibility of formulating unilateral reservations or interpretative declarations, which responds to the logic of the multilateral nature of the Agreement (Article 361). Consequently, the concept of territory, in the terms of Article 6 of the Political Constitution, is respected. Finally, the rule of the integrity of the Agreement is established (meaning that the annexes, appendices, notes, footnotes, among others, form part of the Agreement), as well as matters relating to authentic languages (all the official languages of the Parties).\n\nThis Constitutional Court, after reading these first two sections, does not observe evident and manifest conflicts with the Constitution.\n\n**Part II of the Agreement:**\n\nThis Part II of the Agreement corresponds to the first fundamental axis of the international negotiation achieved. It sets out the necessary norms to give content to the \"Political Dialogue\" agreed upon by both regions. In principle, it is a treaty that replaces the previous \"*Political Dialogue and Cooperation Agreement between the European Community and its Member States, on the one part, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, on the other part*\", signed in the city of Rome on December 15, 2003, and ratified by Costa Rica through Law Number 8919 of December 16, 2010.\n\nThis section of the Agreement synthesizes the objectives of that political dialogue. The establishment of a privileged political partnership is emphasized, in which the exchange of opinions, positions, and information can be fostered, as well as the discussion of matters of mutual interest (Articles 12 and 13). In numeral 13, a list of topics is defined on which the aim is to reach a common ground between both regions; however, this list is not exhaustive, as it is permitted to add any other topic as an area for political dialogue. The political commitments made by our country in this Part II on \"Political Dialogue\" include rules on matters in which Costa Rica has shown a very advanced level of commitment, in some cases responding to areas whose protection has been promoted by the jurisprudence of this Chamber. For example, on the topic of Disarmament (Article 14), there are several international instruments cited in the Association Agreement that our country had previously signed and ratified, among them: the *\"Convention on the Prohibition of the Use, Stockpiling, and Transfer of Anti-Personnel Mines and on their Destruction\"* (approved by Law Nº 7859), and the *\"Convention on Certain Conventional Weapons and its Protocols\"* (approved through Law Nº 7820).\n\nIn that same vein, regarding the topic of Weapons of Mass Destruction (Article 15) or nuclear weapons, Costa Rica is already a Party to the most relevant international instruments that have been developed (e.g., the *\"Comprehensive Nuclear-Test-Ban Treaty and its Protocol\"*, approved by Law Nº 8094; or the \"*Treaty for the Prohibition of Nuclear Weapons in Latin America*\", approved by Law Nº 4369).\n\nIn the matter of the Fight Against Terrorism (Article 16), our country also complies with the rules set forth in the Association Agreement, since it has signed various conventions at the international level on this topic (e.g., the *\"Inter-American Convention Against Terrorism\"*, approved by Law N° 8446, the \"*International Convention for the Suppression of the Financing of Terrorism\"*, approved by Law N° 8257, among others).\n\nOn the other hand, numeral 17 of the Association Agreement reaffirms that the most serious crimes of concern to the international community must not go unpunished, and grants a fundamental role to the functioning of the International Criminal Court, to which Costa Rica gave its adherence through the approval of the Rome Statute of the International Criminal Court (Law N° 8083).\n\nIn the subsequent Articles 19, 20, 21, and 22 of the Association Agreement, general application norms are recognized for topics such as: migration, environment (an area in which Costa Rica has demonstrated a serious international commitment, approving a multitude of agreements), citizen security, and good governance in fiscal matters. Finally, the commitment made regarding the creation of a Common Economic and Financial Credit Fund has even more concrete implications, because its postulates establish the need to have a common mechanism that includes the intervention, for example, of the European Investment Bank, the Latin America Investment Facility, and other technical assistance, all aimed at reducing poverty and supporting development in Central America.\n\nAs in Parts I and V, the Chamber does not consider that the conventional rules set forth in this \"Political Dialogue\" section directly and clearly violate the content of the Political Constitution.\n\n**Part III of the Agreement:**\n\nIn the first place, the \"Cooperation\" Part sets out the objectives and general principles of cooperation between both regions, presented in a generic manner. It is clarified that such cooperation would materialize through the contribution of resources, mechanisms, tools, and procedures (Article 24). Additionally, it explains that all entities involved in the cooperation process are subject to transparent management of the resources delivered to them, as well as the duty of accountability (rendición de cuentas) (Article 26). Part III details a non-exhaustive list of the priority interest areas in which both regions would apply cooperation practices (areas that are classified in Titles I to IX); however, it is recalled that if the Parties so decide, any other area or activity in accordance with the spirit of the Association Agreement may be included in the cooperation category (Article 27).\n\nIn Title I of this Part III, the aim is to establish the main scope of intra-regional cooperation in the sectors of Democracy, Human Rights, and Good Governance. In these areas, fundamental aspects such as the universality, indivisibility, and interdependence of human rights are reiterated; likewise, it is agreed that cooperation in this area shall aim to improve and modernize public management, as well as support a comprehensive peace policy that includes the prevention and peaceful resolution of conflicts.\n\nRegarding Title II, the Association Agreement focused on regulating interregional cooperation concerning Justice, Freedom, and Security. Thus, collaboration is discussed on the topic of personal data protection and the free flow of this data between the Parties, provided the regulations established in each country's domestic legislation are respected.\n\nAlso in the reduction of the supply and demand of illicit drugs, both from a repressive and preventive perspective. The same applies to the topic of money laundering (including the financing of terrorism), organized crime and citizen security (exchanging good practices), the fight against corruption in the public and private sector due to the grave threat it constitutes to the internal institutions of each country, preventing (among other issues) bribery in international transactions and monitoring policies implemented at the local, regional, and international level. In turn, cooperation is extended to prevent and combat the illicit trafficking of light weapons.\n\nRegarding Title III, it must be stated that it was the section designated to regulate cooperation in the field of Development and Social Cohesion. Concerning this subject matter, the interest of both regions in cooperating to combat important social problems such as poverty, social inequality, and exclusion can be highlighted, with the goal of a better distribution of wealth and the establishment of employment policies aimed at decent work for all persons (Article 41). Regarding education and training (Article 43), the Parties agreed to cooperate to achieve equitable access to education, as well as to improve its quality. In public health (Article 44), several pathologies of special attention for cooperation are listed, among other issues. Cooperation will also be sought in the protection and promotion of the fundamental rights of indigenous peoples, as has been fostered by various international instruments created around this population (Article 45). The Association Agreement is also interested in cooperating in favor of socially vulnerable groups and strengthening the gender perspective and equality between men and women in each of the internally relevant areas, without neglecting matters pertaining to youth (Articles 46, 47, and 48).\n\nIn Title IV related to the Migration topic, attention is drawn to the rule establishing cooperation for the return, in humane conditions, of persons who do not possess a legal residence permit (Article 49). In that sense, it was agreed that the Central American republics committed to “*readmit, upon request and without further formalities*,” all of their nationals with irregular migratory status in the territory of any member of the European Union (Article 49.2.a); the same readmission applies to nationals of any EU country who are irregularly in Central America (Article 49.2.b). However, in accordance with Article 49.4 of the Association Agreement, such readmission shall be regulated via a multilateral agreement (between Parties), in which the obligations of each State in this matter would be regulated. In line with what was explained by the Department of Technical Services, the Directorate General of Migration and Aliens (Dirección General de Migración y Extranjería) of our country (in response to a query about bill No. 18.563), pronounced favorably regarding this readmission and the regulations contained in the Association Agreement, indicating that *“it does not present conflicts with current migration legislation.”*\n\nIn another vein, Title V of this Part III of the Agreement refers to the Environment, Natural Disasters, and Climate Change, defining which environmental areas would be covered by interregional cooperation (Article 50). Likewise, it seeks to reduce the vulnerability of the Central American region to natural disasters (Article 51).\n\nTitle VI applies to cooperation in the field of Economic and Commercial Development. Specifically, this section is responsible for regulating the topic of cooperation and technical assistance in matters such as competition policy and its promotion (Article 52), customs and trade facilitation (Articles 53 and 54), intellectual property and technology transfer (Article 55), trade in services and electronic commerce (Article 56), public procurement (Article 58), sustainable fisheries and aquaculture (Article 59), access to markets for artisanal goods and their preservation (Article 60), facilitating trade in organic products (Article 61), food safety, sanitary and phytosanitary measures as well as animal welfare (Article 62), trade and sustainable development, supporting environmental protection and decent working conditions (Article 63), modernization and restructuring of the Central American industry (Article 64), energy and renewable energies, their saving and environmental impact (Article 65), mining taking into account internal legislation and sustainable development (Article 66), fair and sustainable tourism that includes the protection and promotion of cultural heritage and natural resources, all with the participation of local communities, promoting rural, community-based, and ecological tourism (Article 67), modernization and restructuring of transportation in all its modalities, including border posts, facilitating the movement of people and goods (Article 68), support for micro, small, and medium-sized enterprises, so that they can participate in goods and services markets at the local and international level (Article 70), and access to microcredits and microfinancing (Article 71).\n\nIn relation to Title VII, it can be stated that it is intended to regulate cooperation in matter of Regional Integration, strengthening this process in the Central American sphere, especially in the application of its common market, development of its common institutions, and participation of civil society through consultation and awareness campaigns (Article 72).\n\nFor its part, Title VIII refers to Audiovisual and Cultural Cooperation. In that sense, it is highlighted that the Parties committed to promoting the circulation of cultural activities, goods, and services, and of artists and cultural professionals (Article 74). Also included is the promotion of cultural diversity, including that of indigenous peoples and the cultural practices of other groups, incorporating education in native languages. In the audiovisual area, cooperation in communication media, such as radio and press, is mentioned. Finally, it is clarified that a Protocol of Cultural Cooperation is annexed in the final provisions, which is also relevant for the interpretation of this Title.\n\nFinal Title IX of this Part III is related to the Knowledge Society. This section intends to record the cooperation between both regions regarding information and communication technologies, seeking to reduce the digital divide and ensure equitable and inclusive access (Article 75). Topics such as: digital government, electronic commerce, digital signature, telework, among others, are also addressed. Likewise, cooperation would be directed towards the scientific and technological sector, as well as to carrying out joint research actions (Article 76). The promotion of nuclear science and technology for medical applications in areas such as health is affirmed, in particular radiology and nuclear medicine for radiodiagnosis and radiotherapy treatment, as well as other areas that the Parties establish by mutual agreement. The topic of training, scholarships, and exchanges is also emphasized.\n\nHaving analyzed each of the Titles that compose this Part III of the Association Agreement, the Chamber concludes that –in general terms– no evident and manifest unconstitutionalities were found concerning the substance of its rules and texts.\n\n***Part IV of the Agreement:***\n\nAs has been explained, Part IV of the Association Agreement constitutes, properly, the Free Trade Agreement between Central America and the European Union.\n\nIn accordance with Articles 353.2 and 353.4 of the Agreement, unlike the other parts of the Association Agreement which will enter into force when the Parties from both regions have notified the completion of their internal procedures, this Part IV may enter into force for each Central American country that ratifies it, independently of the others, once it has been approved by the European Union.\n\nIn general, this commercial section follows the traditional structure of the World Trade Organization Agreements, developing in 14 Titles the areas of trade in goods (Title II), trade in services and electronic commerce (Title III), and includes provisions on common topics: investment protection concerning financial flows (Title IV), public procurement (Title V), protection of intellectual property (Title VI), and dispute settlement mechanisms (Title X).\n\nTitle I and XIV contain the general provisions applicable to the entire Commercial Agreement, and state the basic objective of the Parties (establishment of a free trade zone), the technical definitions, and the general exceptions that commonly apply in this type of treaties (Title XIV), following the rules specific to the GATT Agreement of the WTO, agreements approved by Costa Rica at the time of its incorporation into the World Trade Organization (Law No. 7475 of December 20, 1994).\n\nThese are, then, objectives of economic policy that may or may not be shared, but in any case, their definition corresponds to a criterion of political opportunity under the responsibility of the Legislative and Executive Branches, not a jurisdictional criterion. The constitutionality control exercised by the Constitutional Chamber cannot substitute for said Branches but must limit itself to verifying that the constitutional order is not violated, all in respect for the principle of self-restraint of the constitutional judge.\n\nRegarding the rules of Titles XII and XIII (on Transparency and Administrative Procedures), they are common provisions in the creation of institutional mechanisms for the implementation of the Agreement, whether with the obligation to publicize internal administrative procedures themselves, to provide the possibility within the legal system to appeal, administratively or judicially, the acts of the bodies responsible for implementing the Agreement (customs and sanitary authorities, among others), or to maintain a point of contact for fluid communication between the Parties. Properly, Title XIII is limited to distributing competencies and functions within the different bodies that are created, to administer and implement the Agreement itself.\n\nThis Commercial Agreement includes some novel topics, such as the regulations relating to the Title called “Trade and Sustainable Development” (Title VIII), in addition to the commitments of regional economic integration (Title IX).\n\nIn general, all these topics and commitments that Commercial Agreements of this type imply have already been assumed by the country in previous treaties. For this reason, and given the eminently technical nature of the contents of the Commercial Agreement, which in principle respond to discretionary criteria of commercial policy, the Chamber deems it necessary to recall some case law issued by this constitutional jurisdiction in cases analogous to the present one, in which it was explained that: “(…) *However, from the point that now concerns us, this means that the State, or more properly, the bodies that have strictly political and management competencies under their charge, must always act with the purpose of stimulating production and the most adequate distribution of wealth.
It should be understood, then, that the Executive Branch has negotiated this Treaty with these constitutional objectives as its guide. And it must also be understood that the Legislative Branch, when examining the substance of said instrument, will act in accordance with the same objectives. That is why we can conclude, in principle, that
the advantages or disadvantages that the Treaty as such, or some of its provisions, debated and debatable, may have for some sector do not necessarily entail an aspect of constitutionality, in the sense on which the Chamber must rule, because they lie at the level of mere convenience or opportunity. For example, some point out that despite the merits of this type of commercial instruments, a country would not derive immediate or short-term advantages if the old model (of import substitution, of subsidies) and the new model of commercial openness coincide within it. (…) In any case, the Chamber warns that these aspects revolve around the policies behind the philosophy of the Treaty but do not have the constitutional connotation to which the Chamber must circumscribe its opinion*” (see judgments number 07005-94 of 09:21 hours on December 2, 1994 and 9469-2007 of 10:00 hours on July 3, 2007, among others). Consequently, in accordance with the various pronouncements that this Chamber has issued on the Free Trade Agreements already in force in our country, it is clear that, in general terms, the commercial and technical clauses contained therein respond to the commercial policy that the Executive Branch had at the time of signing the international instrument. Likewise, it is also observed that many of the norms contained in this Commercial Agreement are basically limited to reaffirming the rights and obligations of the Parties, already previously contained in other international conventions ratified by Costa Rica (e.g., in the area of Intellectual Property, Article 233 of the Agreement lists several international instruments that the Parties must comply with, all of which have already been ratified by our country: the Rome Convention (Law No. 4727), the Berne Convention (Law No. 6083), and the WIPO Treaties on Copyright (WCT) (Law No. 7968) and on Performances and Phonograms (WPPT) (Law No. 7967).\n\nThus, this Tribunal will limit itself to the study of certain novel aspects or those it considers relevant from a constitutional perspective.\n\nThe International Agreement under study, in relation to Title V of Part IV, establishes the main objective of the effective, reciprocal, and gradual opening of their respective procurement markets, supported by transparent, competitive, and open procurement that contributes to sustainable development. Precisely for this reason, Article 211 establishes, as has been provided in previous treaties of the same nature, the need for the Party States to provide treatment no less favorable than that granted by the Party, as well as the duty to manage procurement in a transparent and impartial manner, seeking to avoid conflicts of interest and corrupt practices. In view of the foregoing, the agreement contemplates different forms of administrative procurement, similar to those contemplated in our legal system (denominated in this case open tendering (licitación abierta), selective tendering (licitación selectiva), and restricted tendering (licitación restringida)) which aim to guarantee minimum principles of participation and equality to protect companies that may eventually participate in the Party States. The foregoing is reasonable based on the fact that not every Party State has contemplated such guarantees in its legal system, as ours does, even at the constitutional level, in accordance with the provisions of Article 182 of the Political Constitution:\n\n“Article 182.-\n\nThe contracts for the execution of public works entered into by the Branches of the State, the Municipalities, and the autonomous institutions, the purchases made with funds from those entities, and the sales or leases of goods belonging to them, shall be made through public tendering (licitación), in accordance with the law regarding the respective amount.”\n\nIn particular, the text of the agreement under study provides the following definitions in Article 209.2:\n\n“…f) “Restricted tendering” (licitación restringida) means a procurement method whereby a contracting entity contacts a supplier or suppliers of its choice;…\n\n…k) “open tendering” (licitación abierta) means a procurement method whereby all interested suppliers may submit a tender;…\n\n…n) “selective tendering” (licitación selectiva) means a procurement method whereby a contracting entity invites only qualified or registered suppliers to tender;…”\n\nLikewise, this Agreement regulates the need for publication of information about procurement in a timely, complete, and transparent manner (see Articles 212, 217, and 223) and seeks due access under equal conditions for participation in procurement processes, stating that for the selection of the tenderer, its suitability must be taken into consideration, in relation to financial, commercial, and technical abilities, without giving privileged treatment to those that have previously participated, valuing the offer solely based on territory (Article 214). In accordance with said objectives, Article 220 establishes that provided the procurement procedures are not used as a means to avoid competition or to protect national suppliers, a contracting entity may award contracts through direct contracting or other equivalent procurement procedures in certain circumstances specified therein. The foregoing precisely as a guarantee that a Party State does not indiscriminately justify the use of a direct contracting mechanism to the detriment of the other Party States, thereby harming the principle of good faith governing the negotiation at hand, so that far from diminishing the controls already existing in our legal system for conducting administrative procurement, minimum conditions are established, at least regarding the object to be contracted, to resort to this direct contracting mechanism. All of the above is fully consistent with the principles governing administrative procurement in our country and in no way affects the internal public procurement regime, as there is no agreement to diminish or harm the controls and principles of administrative procurement observed in our country; rather, it seeks to guarantee that these are carried out with all the guarantees of the case. Likewise, Article 225 provides that each Party shall establish or maintain administrative or judicial review procedures that allow for the control of administrative decisions affecting procurement, so that said processes must be timely, effective, transparent, and non-discriminatory, and it refers to our own jurisdiction for the resolution of conflicts of this nature. On the other hand, the Chamber, in judgments No. 2007-9469 and No. 2008-12590, has reiterated, in the face of conditions agreed upon like those under study, that the control exercised by the Office of the Comptroller General of the Republic (Contraloría General de la República) equally prevails, as a guarantee not only for nationals but also for nationals of the Party States:\n\n“… *the Treaty under study leaves to the discretion of each Party the designation of its competent administrative or judicial authority in this matter, imposing only the requirement that it be an impartial body. This is why in the case of Costa Rica, it must be understood in light of our country's internal regulations that the Office of the Comptroller General of the Republic retains all its powers of control and oversight in matter of public procurement, and if it is not mentioned expressly in the Treaty, it is not because its exclusion is intended, but because said designation will depend on the regulations of each Party. The fact that the Organic Law of the Office of the Comptroller General was not included in the list of non-conforming measures does not mean that the oversight power of said body is being excluded. On the contrary, it means that said control was not considered incompatible with the Treaty in light of the provisions of Article 9.15, and therefore did not warrant its inclusion as a non-conforming measure.*”\n\nThus, since there is no provision to the contrary in the treaty, the Office of the Comptroller General of the Republic (Contraloría General de la República) retains all its powers in this matter, and consequently, it can even ensure that the exceptional mechanisms to the “open tendering” process are not conducive to abuses and identify when one is truly facing one of those cases.\n\nOn the other hand, the Chamber notes that although Article 214 of the Agreement, which refers to the conditions for participation, in point 4, second paragraph, provides that: “
Each Party may adopt or maintain procedures to declare the ineligibility to participate in the procurements of the Party, either indefinitely or for a stated period, of suppliers that the Party has determined have engaged in illegal or fraudulent activities related to procurement”; this rule is not harmful to our legal system, despite establishing the possibility of imposing a sanction indefinitely—as would be the case with ineligibility—because the cited rule contemplates two scenarios divided by the conjunction “o” [or], which in this case serves a disjunctive function, implying that the State Party may choose to declare ineligibility indefinitely or for a stated period. Regarding our country, Article 40 of the Political Constitution prohibits the existence of perpetual sanctions, so when the corresponding procedures are regulated, the indicated ground simply could not be subject to an indefinite sanction, but rather to a determined timeframe, which is also consistent with the provisions of the international Agreement under study.\n\nFurthermore, in Title VII of this Part IV, called: “Trade and Competition,” some principles are expressed that would govern competition in trade relations between each region (Article 278). In that sense, it was recorded that the Parties recognized the importance of free and undistorted competition; also, that anti-competitive practices can affect the proper functioning of markets and the benefits of trade liberalization. Next, the Parties agreed on a list of practices that would be incompatible with the Agreement. However, they also included important clarifying or safeguard clauses such as the one set forth in numeral 280: “
No provision of this Title shall prevent a Republic of the CA Party or a Member State of the European Union from designating or maintaining public undertakings, undertakings with special or exclusive rights or monopolies in accordance with their respective domestic legislation” (emphasis is not from the original)
. As is well known, Costa Rica already has normative regulation related to the matter of competition (Law for the Promotion of Competition and Effective Consumer Defense, Law No. 7472 of December 20, 1994); likewise, in recent years, the national market has been liberalized in certain specific sectors (e.g., the General Telecommunications Law, No. 8642, which imposes a competition regime in that area).\n\nIn Title VIII, related to “Trade and Sustainable Development,” a series of principles on labor and environmental standards are established, considering not only current generations but also future ones. The right of the Parties to regulate their own level of protection, in accordance with their respective Constitutions, is recognized (Article 285), but reaffirming the commitment to implement, in their law and practice, the ILO Conventions listed in numeral 286 of the Agreement (Convention 138 concerning Minimum Age for Admission to Employment (Law No. 5594), Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Law No. 8122), Convention 105 concerning the Abolition of Forced Labour (Law No. 2330), Convention 111 concerning Discrimination in Respect of Employment and Occupation (Law No. 2848), as well as Conventions 29: concerning Forced or Compulsory Labour, 100: concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 87: concerning Freedom of Association and Protection of the Right to Organise, and 98: concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (all approved jointly by Law No. 2561)), as well as the multilateral environmental agreements to which they are party, listed in Article 287 of the Agreement (Montreal Protocol on Substances that Deplete the Ozone Layer (Law No. 7228), Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Law No. 7438), Stockholm Convention on Persistent Organic Pollutants (Law No. 8538), Convention on International Trade in Endangered Species of Wild Flora and Fauna “CITES” (Law No. 5605), Convention on Biological Diversity (Law No. 7416), Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Law No. 8537), Kyoto Protocol to the United Nations Framework Convention on Climate Change (Law No. 8219)).\n\nIt is precisely in this section of the Agreement (Article 287.3) where the Parties “
(…) commit to ensuring that they will have ratified, by the date of entry into force of this Agreement, the Amendment to Article XXI of CITES, adopted in Gaborone (Botswana) on April 30, 1983”. As has been seen, this obligation assumed by the State constitutes the second article of the draft law submitted for consultation before this Chamber, the constitutionality of which will be addressed later. Next, it is also indicated in the Agreement that the Parties committed to ratifying the “
Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade”, an instrument that has already been ratified by Costa Rica through Law No. 8705. In the same vein, numeral 290.2.a of the Agreement states that, regarding Trade in Fishery Products, the Parties commit to adhering to the principles of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Law No. 8059).\n\nParticular mention deserves numeral 290.3 of the Agreement, which regulates the following:
“The Parties agree, to the extent they have not yet done so, to take port state measures in conformity with the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing of the Food and Agriculture Organization of the United Nations (…).” According to what was verified in the Legislative Assembly, the Accession to said Agreement is being processed through legislative file 18.320, and the draft law is titled as follows: “
APPROVAL OF ACCESSION TO THE AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (PSMA) AND ITS ANNEXES”. As was confirmed, said Agreement related to Port State Measures and Illegal Fishing has not yet been approved by that parliamentary body. The last legislative proceeding verified for this international agreement was its entry into the Plenary Agenda on September 10, 2012, without the legislative procedure having concluded to date in order to obtain accession. It is important to recall that regarding the figure of “accession” to an international agreement, this Court has indicated the following in its jurisprudence:\n\n
“ACCESSION TO AN INTERNATIONAL AGREEMENT. Prior to the substantive review of the draft law under consultation, it is appropriate to refer to the figure of accession as a mechanism for ratifying an international instrument that was not negotiated directly by the Government of Costa Rica, but which the latter subsequently decides, in a sovereign manner, to commit to its content. The figure of accession is established in Article 2 of the Vienna Convention on the Law of Treaties, Law No. 7615 of July 24, 1996, when indicating, as relevant, that “‘Ratification’, ‘acceptance’, ‘approval’ and ‘accession’ mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty”. Likewise, Article 11 regulates the forms of manifestation of the State's consent to be bound by a treaty, consent that may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession. Regarding this numeral, the Government of Costa Rica made a reservation to the effect that the constitutional legal system of our country does not authorize any form of consent that is not subject to the approval of the Legislative Assembly. This, of course, in light of what is indicated in Article 121 of the Political Constitution which provides in subsection 4° that it corresponds exclusively to the Legislative Assembly to approve or reject international agreements, public treaties, and concordats. That is, the consent of the Costa Rican State is always linked to the authorization of the parliamentary body. Furthermore, the Vienna Convention establishes in Article 15 the possibility of a State to accede to an international instrument and regulates it in the following sense: “Article 15.- Consent to be bound by a treaty expressed by accession. The consent of a State to be bound by a treaty is expressed by accession when: \n\n
a) The treaty provides that such consent may be expressed by that State by means of accession; b) It is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or c) All the parties have subsequently agreed that such consent may be expressed by that State by means of accession.” It follows from this numeral that the possibility of acceding to the text of an international agreement that was not directly negotiated and signed is legitimate, provided that the negotiating Parties to the convention so authorize it or that possibility is provided for in the convention itself” (see judgment number 2011-001308 of 15:10 hours of February 02, 2011).\n\nIn the present case, as indicated, the Costa Rican State, through the approval of the Association Agreement, undertakes to adopt measures aimed at implementing port state measures, in accordance with the cited Agreement of the Food and Agriculture Organization of the United Nations, so that control and inspection systems are established, as well as incentives and obligations for the rational and sustainable management of fishing and coastal ecosystems in the long term. In this regard, we must specify that the Association Agreement does not impose, as a *sine qua non* condition of validity, the approval of the accession to the Agreement on Port State Measures. It merely indicates that the State that has not adopted it, like ours, must at least adopt corresponding measures that refer to the content of that Agreement to prevent, deter, and eliminate illegal fishing, and implement control and inspection systems, as well as incentives and obligations for the rational and sustainable management of fishing and coastal ecosystems in the long term, which in the event of choosing its adoption, does not exempt it from following the procedures established in our legal system. Likewise, from an integral reading of Article 290, it is clear that its objective is for the Parties to recognize the need to promote sustainable fishing, in order to contribute to the conservation of fish stocks and the sustainable trade of fishery resources, which is fully consistent with the protection that safeguards the right to a healthy and balanced environment in our State; and the reference made to this Convention in subsection c) was not made with the imperative that, for example, point 2 establishes in relation to other principles.\n\nContinuing with the substantive analysis of the Association Agreement, it is observed that Article 295 expresses the consent to facilitate interregional relations through dialogue forums
with civil society, with balanced representation, of environmental, economic, and social actors. Likewise, in this Title, a Panel of Experts is established, which is responsible for “
examining whether a Party has failed to comply with the obligations established under Articles 286, paragraph 2; 287, paragraphs 2, 3 and 4; and 291 of this Title, and formulating non-binding recommendations to resolve the matter (…)” (Article 299).\n\nThroughout the Agreement, as has been seen, there exist a series of norms that allow the
participation of civil society in certain issues of important relevance. In the Chamber's consideration, it is necessary to note this particularity of the Agreement since it finds connection with a transcendental principle of constitutional root such as citizen participation, contemplated in numeral 9 of the Constitution. The jurisprudence of this Court has been extensive in developing this right and highlighting its relevance in our legal system. Thus, it has been held that this principle of citizen participation in decision-making has become one of the fundamental pillars on which the democratic system rests. In that sense, Article 9 of the Political Constitution establishes, among other characteristics, that the Government of the Republic must be participatory. With the reform in force since July 31, 2003, to numeral 9 of the Fundamental Law, it was established that the Government of the Republic must be, among other aspects, participatory, which implies that the incumbent government is an articulator of what is established by popular deliberation. In other words, it is the citizens who have greater participation in political decision-making; they can and must exert direct influence on public decisions. This principle, seen as a fundamental right of citizen participation, establishes that the people must be enabled to express themselves equally on both majority and minority viewpoints (see judgment number 015763-2011 of 09:46 hours of November 16, 2011). Thus, the Chamber considers that the Association Agreement *sub examine* contains a set of norms that promote the advancement of this constitutional right, hence it is worth highlighting this virtue in its text.\n\nIn Title IX called “Regional Economic Integration,” commitments acquired by the Central American region in this area are described, focused mainly on the area of customs procedures, technical barriers to trade, sanitary and phytosanitary measures, among others, for all of which a series of previously agreed-upon deadlines were provided to fulfill such integration requirements. It should be remembered that the Central American region has assumed many of these duties stemming from the integration process that has been developing for several years; however, for some matters, the Agreement orders the fulfillment of commitments within duly defined periods.\n\nA section to highlight in this Part IV of the Agreement is that set forth in Titles X and XI, concerning “Dispute Settlement”. There, a dispute settlement mechanism based on an arbitration procedure or Special Group is established (Title X). This procedure applies only to the Trade Agreement (Part IV), and it is not possible to execute it in disputes between Central American countries. In this Title X, there is freedom of choice of forum to raise the dispute, but obviously not through both avenues. In that sense, Article 326 of the Agreement establishes the possibility that if a disputing Party wishes to redress the infringement of an obligation under the Understanding on Rules and Procedures Governing the Settlement of Disputes of the WTO, it may resort to the rules of the WTO Agreement.\n\nOn the other hand, it is explained that prior consultations must mandatorily be raised, and once that procedure is exhausted without reaching a solution, the request for a Special Group is made, which is formed from the List of Experts defined by the parties. This Special Group issues a decision, and if a party is reluctant to comply with it, it gives the counterparty the right to compensation or suspension of benefits in equivalent terms (Article 314). Additionally, a mediation mechanism is proposed for non-tariff measures that produces legal effects in the event of a mutually agreed solution. This mediation procedure is contemplated in Title XI of the Agreement. Specifically, Article 334 explains that mediation is independent of Title X (Dispute Settlement) and is not intended to serve as a basis for dispute settlement procedures under that Title. That is, the request for mediation that any of the Parties may raise shall not exclude recourse to Title X.\n\nAs is well established in Article 308 of the Agreement, the dispute settlement provided for in Title X shall only serve to
“(…) resolve any dispute between the Parties concerning the interpretation or application of Part IV of the Agreement (…).” That is, arbitration, mediation, and other alternative means of settlement are established so that the Parties (the States) can enforce the obligations acquired by their counterparty, provided that these are obligations that do not go beyond the patrimonial scope protected in numeral 43 of the Political Constitution.\n\nOn the other hand, Article 319 of the Agreement provides that the Rules of Procedure that will govern the settlement of disputes shall be adopted by the Association Council, unless the disputing Parties agree otherwise. In numeral 321 of the Agreement, the figure of the “
amicus curiae” is recognized, through which the possibility is granted for natural or legal persons with an interest in the matter to submit written statements for the possible consideration of the Special Group, in accordance with the Rules of Procedure. In Article 323.2 of the Agreement, it is clarified that any decision of the Special Group shall be final and binding on the Parties, which –as has been explained– is a logical consequence of the prior signing and acceptance by the States of the arbitration clause in this type of international instruments, the same that has been accepted by this Chamber on previous occasions.\n\nFinally, from the reading of both Title X and XI, it is not evident that this Association Agreement has contemplated the establishment of mechanisms for disputes between
investors of one Party and States of another; nor is it observed that any section or portion exists within the Agreement, especially called to regulate the Settlement of Disputes between a Party and an investor of the other party. On the contrary, in Title X (Dispute Settlement) only the term “Parties” is mentioned in each of its rules. It is clear that the notion of “Parties” must be read in accordance with the provisions of Part V of the Agreement, where the final provisions of the convention are outlined and among which is Article 352 that, precisely, refers to the “Definition of the Parties” for the purposes of the Agreement. In that article, only the Central American Republics are cited, on one side, and the Member States or the European Union, on the other. In this way, no other interpretation would be possible than to conclude that the dispute settlement mechanism is only for disputes between States. The same is verified from the reading of Article 329.3 of the Agreement, in which it is indicated that “
this Title shall apply bilaterally between the EU Party, on the one hand, and each of the Republics of the CA Party, on the other.” This rule is contained within Title XI, which regulates the “Mediation Mechanism for Non-Tariff Measures.” Thus, for the resolution of the *sub lite*, it is not appropriate to rely on the reasons set forth in judgment number 2007-09469 (CAFTA-DR with the USA) regarding this topic of arbitration and alternative dispute resolution, since on that occasion such reasons were referred
specifically to the scope of the Settlement of Disputes between
Investor-State, a scenario that, as has been seen, was omitted in this Association Agreement.\n\nLeaving behind the topic of Dispute Settlement, the Association Agreement under study also undertook to regulate in its Title XII a special section called “Transparency and Administrative Procedures.” Article 338 develops the agreement between the Parties to cooperate in relevant bilateral and multilateral forums to increase transparency, including the elimination of bribery and corruption in matters covered by Part IV of the Agreement (Trade Part). The remaining rules contained in this Title are those necessary to implement and fulfill this mission between both regions.\n\nFinally, in Title XIV called “Exceptions,” common exceptions for temporary restrictions by virtue of balance-of-payment problems are set forth. Likewise, in this section, it is clarified that the fiscal or taxing power of the States is not affected in any way by virtue of the Agreements.\n\nX.- Based on the foregoing, regarding the substance of the Association Agreement examined, no manifest unconstitutionalities are detected, which does not preclude highlighting the following: 1) by virtue of the fact that numeral 290.3 of the Agreement provides: \"The Parties agree, to the extent that they have not already done so, to adopt port State measures in accordance with the Agreement of the Food and Agriculture Organization of the United Nations on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, implement control and inspection systems, as well as incentives and obligations for the rational and sustainable management of fisheries and coastal ecosystems in the long term.\" and Costa Rica has not yet approved said convention, we must clarify that the Association Agreement does not impose, as a sine qua non condition of validity, the approval of adherence to the Agreement on Port State Measures. It is limited to indicating that the State that has not adopted it, like ours, must at least adopt the corresponding measures that refer to the content of that Agreement to prevent, deter, and eliminate illegal fishing and implement control and inspection systems, as well as incentives and obligations for the rational and sustainable long-term management of fisheries and coastal ecosystems, and that in the case of opting for its approval, it does not exempt it from following the procedures established in our legal system. Likewise, from a comprehensive reading of Article 290, it is clear that its objective is for the Parties to recognize the need to promote sustainable fishing, in order to contribute to the conservation of fish stocks and the sustainable trade of fishery resources, which is fully consistent with the protection that safeguards the right to a healthy and balanced environment in our State; and the reference made to this Convention in subsection c) was not made with the imperative that, for example, is established in point 2 regarding other principles; 2) the mere approval of the Agreement does not imply that Costa Rica recognizes the jurisdiction of the Central American Court of Justice (Corte Centroamericana de Justicia); and 3) Article 214 of the Agreement proposes, as a sanction for a supplier who has engaged in illegal or fraudulent activities related to procurement, the sanction of ineligibility to participate in the Party's procurements, either indefinitely or for a set period; consequently, each Party may opt for one of these two variants, but in the case of Costa Rica, the option would be ineligibility for a set period, given that indefinite sanctions are inadmissible.\n\nXI.- The other articles contained in bill No. 18.563. As indicated above, besides the ratification of the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" bill number 18.563 proposes the approval of the following norms: 1) the Amendment to Article XXI of the \"Convention on International Trade in Endangered Species of Wild Fauna and Flora\" (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983; 2) the Creation of the Council of Land Border Posts (Consejo de Puestos Fronterizos Terrestres); 3) the Creation of two taxes to defray, primarily, the costs of works related to the operation, conservation, and expansion of land border posts; 4) finally, the Representation before the Organisation for Economic Co-operation and Development (OECD) that is intended to be assigned to the Ministry of Foreign Trade (COMEX). Each of the aforementioned provisions will be studied in the order in which they were presented.\n\nXII.- Regarding the Amendment to Article XXI of the \"Convention on International Trade in Endangered Species of Wild Fauna and Flora\" (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983, it must be noted that from the statement of purpose of this bill and the reading of the Association Agreement, as part of the political negotiation between both regions, it was agreed that along with the ratification of the Agreement, the obligation of the Central American States to approve the cited Amendment to Article XXI would be included. This amendment seeks the recognition of any regional economic integration organization constituted by sovereign States as a Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. In general terms, it is also necessary to recall that CITES is an international instrument aimed at the protection of wild fauna and flora through the regulation and limitation of international trade in protected species. The Legislative Assembly approved this convention through Law No. 5605 of October 30, 1974. The approval of said amendment in the bill under study is reasonable, since the necessary validation of this Amendment has been the product of a political negotiation inherent to the Association Agreement to be approved. In the Central American sphere, only Guatemala, Panama, and Nicaragua have ratified the Gaborone Amendment (see webpage: http://www.cites.org/esp/disc/parties/gaborone.php), hence it was deemed necessary for the remaining three countries in our region (El Salvador, Honduras, and Costa Rica) to proceed in the same manner. It is noted that in the publication in volume V of Supplement No 180 of the Official Gazette La Gaceta No. 220 ( http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-5_14_11_2012.pdf ), at the end of article 3 and before article 4, the following paragraph was introduced: \"Administered by the International Union for Conservation of Nature and Natural Resources on behalf of the United Nations Environment Programme.\" After comparing those lines with the text of the Amendment in the bill (folio 4980 of the certified copy of the legislative file sent to the Chamber, volume XV), it is observed that the referenced lines do not correspond with the original discussed and approved in the first debate in the Legislative Assembly. However, the foregoing does not constitute an essential procedural defect. As indicated in Considering VII of this pronouncement, in attention to the publication requirement in La Gaceta under Article 117 of the Regulation of the Legislative Assembly (Reglamento de la Asamblea Legislativa), from the Chamber's jurisprudence it is extracted that the crux of the matter consists of analyzing, according to the specific case, to what extent an error in publication leads to a defect in publicity, from which the general citizenry has a confused understanding of the content of a bill to be approved in the Legislative Assembly or their informed participation in its discussion is restricted. It is not, therefore, a matter of applying a rigid formalism, foreign to the circumstances of the case, but of employing legal hermeneutics in accordance with the rules of sound criticism, such that the norms are interpreted in the way that best guarantees the realization of the purpose or purposes they pursue. In the present case, the aforementioned defect –a separate addition in articles 3. and 4. of the Amendment– does not alter the content of the latter nor distract from the correct meaning of what is regulated in said numerals, which is why no impediment whatsoever to popular participation in the adoption of major national decisions through the publicity of legislative projects is observed. Likewise, the added lines make no sense by themselves, fail to complete an idea, and their syntax confirms this. Under this reasoning, this Court does not consider that the inclusion of the approval of the Amendment to Article XXI of the \"Convention on International Trade in Endangered Species of Wild Fauna and Flora\" (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983 (bill processed in legislative file No. 18.563) raises any conflict whatsoever with Constitutional Law.\n\nXIII.- Regarding the creation of the Council of Land Border Posts (contemplated in the third article of the bill), the creation of two taxes to defray, primarily, the costs of works related to the operation, conservation, and expansion of land border posts (fourth article of the bill), and the Representation before the Organisation for Economic Co-operation and Development (OECD) that is intended to be assigned to the Ministry of Foreign Trade (COMEX), established in the fifth and final article of bill No. 18.563, it is pertinent to clarify that, in this Chamber's opinion, said provisions become a typical manifestation of the ordinary legislative activity assigned to the Legislative Branch. As can be clearly extracted from a simple reading of such norms, they are not matters that must be analyzed by this Constitutional Court under the figure of a mandatory legislative consultation of constitutionality, since, in accordance with Article 96, subsection a) of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), the Chamber is called to issue its advisory opinion, mandatorily, only in those cases where the approval of bills for constitutional reforms, reforms to the Law governing this jurisdiction, or those cases aimed at the approval of international agreements or treaties is intended. For the purposes of this consultation, it is important to highlight the last of these cases: the approval of international agreements or treaties. As has been possible to appreciate, the first and second articles of bill No. 18.563 concern the approval by our country of two international instruments, respectively: the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other\" (in the first article), and the Amendment to Article XXI of the \"Convention on International Trade in Endangered Species of Wild Fauna and Flora\" (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983 (second article). In both cases, the mandatory consultation was appropriate since it concerns the approval of international agreements or treaties, in the terms established by subsection a) of Article 96 of the Law of Constitutional Jurisdiction. However, the Chamber considers that the mandatory legislative consultation of constitutionality is not applicable for the other provisions contained in the bill processed under legislative file number 18.563, since none of them possesses the legal nature of an international treaty or agreement, in the terms required by subsection a) of the cited Article 96. Although they could be considered as norms that contribute to the implementation of the Agreement, the truth is that they are norms of domestic national law. Consequently, regarding Articles 3, 4, and 5 of legislative file No. 18.563, the consultation is inadmissible and cannot be addressed.\n\nXIV.- Corollary. Based on the foregoing, regarding the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" and the \"approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983,\" no essential procedural defects or unconstitutional provisions are observed. It is noted that both the Agreement and the Amendment require an absolute majority vote of the members present for their approval. Regarding the Council of Land Border Posts (contemplated in the third article of the bill), the creation of two taxes to defray, primarily, the costs of works related to the operation, conservation, and expansion of land border posts (fourth article of the bill), and the Representation before the Organisation for Economic Co-operation and Development (OECD) that is intended to be assigned to the Ministry of Foreign Trade (COMEX), established in the fifth and final article of bill No. 18.563, the consultation is inadmissible and cannot be addressed.\n\nXV.- Separate note of Judge Castillo Víquez. Regarding the vote required for the approval of the consulted bill, it is necessary to keep in mind that the qualified majority is required for its final approval, not in the first debate, that is, after the conclusion of the second debate, just as the majority of this Court has maintained.\nOn the other hand, I share the thesis that the Agreement does not require a qualified majority but for other reasons. Firstly, because competencies are not being transferred to a supranational entity, in such a way that its decisions are of imperative compliance for the State of Costa Rica. Secondly, Article 6, subsection 2, is clear in the sense that the decisions adopted by the Association Council are binding for the parties, but for their execution, the internal rules and legal procedures of each Party must be respected. The foregoing means, neither more nor less, that the decisions of that Council, which are adopted by consensus, are not of automatic application, but rather must observe the constitutional competencies that are in Constitutional Law (values, principles, and norms) in the ownership of the constitutional bodies, for example: if it involves a substantial modification to the agreement, either because its object or purpose is expanded or modified, or because new obligations are imposed on the State of Costa Rica, legislative approval will be required, just as for those decisions that do not derive expressly or implicitly –theory of implied powers– from the Agreement and that affect fundamental rights, since their legal regime is reserved to the Law. When it concerns the exercise of sovereign powers (potestades de imperio) that Constitutional Law confers on the State bodies, and whose exercise is partially transferred to supranational bodies –a typical case of the exercise of domestic competencies by an international body–, the matter is resolved through the aggravated approval of the Agreement. On the contrary, if the obligations or other duties derive from the Agreement itself, the Executive Branch possesses the competence to fully comply with them through lower-ranking protocols, the exercise of regulatory power, and other powers-duties that the legal system attributes to it.\nThe scenario is different when, by virtue of being a party to the treaty or agreement, a body created by it, in the exercise of the competencies attributed to it in the international instrument, adopts an act that, according to the agreement, is binding for all contracting parties –a typical case of the exercise of international competencies by an international body–. In this scenario, the qualified majority is not required, since there is no transfer of competencies from internal bodies to supranational bodies, and therefore the majority required for its approval is the absolute majority of the members present, as provided in Article 121, subsection 4, first paragraph, in relation to numeral 119 of the Constitution.\nFinally, I do not endorse the statement that the qualified majority is only required when it involves a community model, because while it is true that the partial reform to the Political Constitution, through Law No. 4123 of May 31, 1968, was made adopting the Central American Common Market as a frame of reference, the truth of the matter is that today the dynamics of the international economy and global politics drive a series of economic institutions for integration, commercial exchange, and economic cooperation among States themselves, and between them and international organizations on a global, regional, or bilateral scale, have created new modalities of economic integration that are in accordance with Constitutional Law, and in the event that sovereign competencies are transferred to the organizations or institutions created in international treaties, the qualified majority established in numeral 121, subsection 4, paragraph 2, of the Political Constitution is required for their approval; a situation that does not arise in the present case for the reasons noted above.\n\nPor Tanto:\nThe consultation is addressed in the sense that Articles 1 and 2 of legislative file No. 18.563, corresponding respectively to the \"Law Approving the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other; and the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983,\" contain no essential procedural defects or unconstitutional provisions. Regarding Articles 3, 4, and 5 of legislative file No. 18.563, as they are not matters subject to a mandatory consultation of constitutionality, such consultation is inadmissible and cannot be addressed. Judge Castillo Víquez sets down a separate note. Judges Armijo Sancho and Cruz Castro dissent and address this legislative consultation in the sense that they observe defects of form and substance. Let this resolution be notified to the Directorate of the Legislative Assembly.-\n\nGilbert Armijo S.\nPresidente\n\nErnesto Jinesta L. Fernando Cruz C.\n\nFernando Castillo V. Paul Rueda L.\n\nAracelly Pacheco S. José Paulino Hernandez G.\n\n**Dissenting vote of Judges Armijo Sancho and Cruz Castro, drafted by Judge Armijo:**\n\n***Regarding the procedure:***\n\nOnce the process followed by the bill processed in legislative file No.\n\n18.563, the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, the following procedural defect is observed:\n\n**A) Violation of the legislative procedure for approval of this international treaty, due to the majority obtained in the vote in the first debate:**\n\nThe undersigned Magistrates consider that in the present case, regarding the approval of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, legislative file No. 18.563, Article 121, subsection 4) of the Political Constitution has been violated, insofar as said bill was not approved by a qualified majority, even though it clearly attributes or transfers certain competencies to a community legal order, with the purpose of achieving regional and common objectives. In this sense, it is evidently clear that Community Law covers both cases where various States adhere through integration mechanisms, and those where, as a prior step to these, they initiate collaborative and cooperative relationships, as is the specific case, all of which undoubtedly justifies the requirement of the qualified majority of Article 121, subsection 4) of the Constitution for the approval of international treaties of this type. Indeed, upon reviewing the minutes of plenary session No. 12 of Tuesday, May 21, 2013, it is clearly deduced that the bill was only approved by 37 deputies out of 41 present (4 deputies voted against), see folio 12387 of the certified copy of legislative file No. 18.563, thus failing to obtain the majority provided for in the Constitution for norms of this class. In this regard, among the competencies transferred to supranational bodies, it is necessary to mention those pertaining to the Association Council (see articles 4 to 6 of the Agreement), mainly Article 6 which stipulates: *\"1.- To achieve the objectives of this Agreement, the Association Council shall have the power to adopt decisions in the cases provided for in this Agreement. 2.- The decisions adopted shall be binding on the Parties, which shall take the necessary measures to implement them in accordance with the internal rules and legal procedures of each party\"*, as well as those relating to the Association Committee, which under the terms of the Treaty shall be the body responsible for the general application of this Agreement, and which shall also be empowered to adopt decisions in the cases provided for in the Treaty, or when the Association Council has delegated such power to it (see points 2 and 4 of Article 7 of the Agreement). For this reason, and given the seriousness of the defect observed on this occasion, the undersigned Magistrates issue a dissenting vote and resolve the consultation formulated in the sense that the present bill for the approval of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, injures the Law of the Constitution, since it does not achieve the majority provided for in Article 121, subsection 4) of the Fundamental Norm for the approval of norms of this type.\n\n***Regarding the substance of the bill:***\n\nThe undersigned Magistrates dissent from the majority vote on several of the issues raised on the substance and consider that the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, contains some unconstitutionalities, as will be explained. We believe that regarding some of the provisions, the consulted bill is unconstitutional with respect to certain premises of the Social and Democratic State of Law. To support each of these aspects, we will proceed to address each one separately.\n\nBefore analyzing the specific regulations on each of the topics, we consider it important to examine, as was done in the Dissenting Vote to advisory opinion No. **2007-09469** of 10:00 a.m. on July 3, 2007, the concept of the Social and Democratic State of Law and its impact on some of the provisions regulating the multilateral Convention under examination.\n\n**I- GENERAL CONSIDERATIONS ON THE SOCIAL AND DEMOCRATIC STATE OF LAW**\n\nThe Costa Rican State is a Social and Democratic State of Law. This statement is not empty of content but has its implications and its transcendence, especially because such a designation has been derived by reiterated Constitutional Jurisprudence based on the very Text of Our Magna Carta.\n\n**A) General Concept of the Social and Democratic State of Law:**\n\nThe theory of the State of Law was developed at the end of the 19th century with the objective of subjecting the State to the Law, to put a brake on arbitrary actions, and to recognize and guarantee a series of fundamental rights to individuals. This theory was consolidated in democratic political systems, to the extent that it came to be maintained that any democracy, in order to be one, must be framed within a State of Law. Thus, it was more properly referred to as the *Democratic State of Law*. Subsequently, from the second half of the 19th century, when States assumed a more predominant role within modern societies, and when States were endowed with a series of economic policy instruments to seek greater equity in societies, the previous concept was completed by being called the *Social and Democratic State of Law*. That is why it is said that this latter concept is more complete than the former, as it alludes not only to the subjection of the State to the rule of Law (*State of Law*), but also to the actions the State must undertake as a manager of public policies aimed at achieving greater social equity (*Social*), and to doing so within a procedural framework that allows for the mitigation of asymmetries in the social, political, and economic order, thus fostering the effective validity of the fundamental values of democracy. Despite the division of this agreement into three parts: political dialogue, cooperation, and trade, the reality is that a large part of its provisions circumvent the scope of the Social and Democratic State of Law, as will be seen below.\n\n**B) Costa Rica as a Social and Democratic State of Law:**\n\nThe Costa Rican State is a *Social and Democratic State of Law* based on what was established by the Original Constituent Power (Minutes of the 1949 Constituent Assembly) and on constitutional jurisprudence, and even though there is no constitutional norm that states it literally.\n\n**1) According to what was established in the
Minutes of the National Constituent Assembly**\n\n*\"A Constitution is made for a people with fundamentally different points of view\"* (Minute No. 49) and the Draft Constitution discussed in 1949 *\"far from establishing an exclusivist economic thesis, establishes a flexible system so that in the future governments of opposing tendencies, different ideologies, may come, which may, despite this, exercise their activities within the constitutional framework, without needing to reform the Political Charter… the drafting Commission tried to establish a Constitution that contemplates the aspirations of different groups and sectors, flexible - therefore - as North American Justice Holmes expressed in his dissenting vote of 1905, which I allowed myself to read here, no Constitution should encompass a specific economic theory, whether that of interventionism, or that of classic liberalism; on the contrary, the Constitution must be malleable, flexible, so that in the future the country can legally accommodate new tendencies and can continue its life uninterrupted, especially in economic and social matters, without needing constant reforms of the Political Charter.\"* (see Minute number 50) reason why it was subsequently stated in that same minute that *\"The contemporary world demands that political liberties be complemented with social security institutions that guarantee the dignity of the human person.\"* Thus, our Political Constitution has maintained a complement between liberties and social rights, since even if it were entirely about one (liberties) or the other (social rights), it would cease to be a Democratic Constitution, as also mentioned in the same minute 50 of the Constituent Assembly, when it was again maintained that: *\"no Constitution should encompass a specific economic theory, be it that of interventionism or that of classic liberalism, unless it is the Constitution of a totalitarian or dictatorial country. On the contrary, the Constitution of democratic countries must be flexible, so that in the future it can accommodate new tendencies…\"* for as Constituent Delegate Rodrigo Facio says: *\"It is a matter of a balance, in my opinion, a very healthy one, Social Justice with Economic Efficiency: so that justice does not kill efficiency, nor efficiency kill justice.\"* This tendency is also denoted in our Political Constitution when the chapter relating to social guarantees is discussed (Minute No. 115), particularly in the drafting of the current Article 50, which states: *\"The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth...\"* for note that against the proposal that sought to change the word \"organizing\" to the word \"guiding,\" the former was preferred because it was said the contrary *\"comes to mutilate a fundamental principle, which is that the State must participate in the orientation of the national economy.\"* This text and its content are especially relevant because it implies that the State must participate in the orientation of the national economy and that there must not be legal provisions that limit, in the abstract, without any nuance, the intervention of the State or that justify its generalized and unlimited intervention. It would not be admissible for legislation to define, without limiting it to a specific situation, a liberal or interventionist orientation.\n\n**2)
Constitutional Jurisprudence:**\n\nThis Constitutional Court has been systematically reiterating in its resolutions that our country is a *Social and Democratic State of Law*, essentially based on the values derived from Articles 50 and 74 of the constitutional text. In this regard, just to mention some rulings, there are the following: 1993-3464, 1995-0550, 1995-1273, 1995-3067, 1995-4286, 1995-4286, 1995-5545, 1995-6347, 1996-1029, 1997-6469, 1996-2379, 1996-3250, 1996-2810, 1997-1019, 1997-1625, 1997-5035, 1997-8325, 2004-14247, 2003-2794, 2003-2771, 2005-16962, 2006-9565, 2006-17113. From all of them, several conclusions can be drawn: *first,* that the basic general principle of the Political Constitution is embodied in Article 50, by providing that *\"the State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth,\"* which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in Article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and that defines it as a Social State of Law. *Second,* that the current Constitution, in its Article 50, gives constitutional basis to a certain degree of State intervention in the economy, postulating economic freedom but with a certain reasonable, proportionate, and non-discriminatory degree of state intervention, allowing the State, within such limits, to organize and stimulate production, as well as to ensure an \"adequate\" distribution of wealth. *Third,* that freedom of commerce is not an absolute individual guarantee but rather finds its limits in those that the State legitimately establishes, for the benefit of the generality of its citizens, always within the global context of the Law of the Constitution. *Fourth,* that one of the basic connotations of the Costa Rican State, like any *Social State of Law*, is the intervention of the rulers to provide solutions to social problems. The Political Constitution itself obliges the State to actively participate, not only in production processes (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantees them a dignified and useful existence for society. *Fifth,* that public administrations, far from fulfilling a passive role of solely and exclusively fostering the individual exercise of fundamental rights, have a duty of service provision and assistance in order to secure for all persons who make up the community a minimum vital sphere and, of course, to eradicate all obstacles and impediments to the achievement of real and effective equality among them. *Sixth,* that from the definition of the Costa Rican State as a *Social State* derives the faculty of the State to deploy a series of limitations on fundamental rights in consideration of the greater benefit of the community, in order to guarantee public order, social morality, the rights of third parties (Article 28 of the Constitution), and the validity of democratic and constitutional values. *Seventh,* that the *Social State of Law* produces the phenomenon of incorporation into the fundamental text of a series of political objectives of great social relevance and the introduction of an important number of social rights that ensure the common good and the satisfaction of the elementary needs of individuals. These conceptual determinations are important and of great transcendence, because in constitutional jurisprudence, a special strength has been recognized for fundamental rights and for the political and economic system, which undoubtedly encompasses the *Social and Democratic State of Law*. In Considerando VII of ruling 03-2771, it is stated that \"…*
In the case of constitutional reform, a great and important difference arises: those constitutional norms relating to fundamental rights or transcendental political decisions can only be reformed by a Constituent Assembly in accordance with Article 196 of the Political Constitution. For the sake of the forcefulness of the statement, we repeat that the original norms regarding fundamental rights and the political and economic systems can only be diminished by a constituent assembly. …*\"; in this same Considerando, it is reiterated that partial reform of the Constitution can be carried out by the Legislative Assembly, \"…*as long as its activity does not negatively affect fundamental rights, nor the political and economic system, which Costa Ricans substantively gave themselves through the constituent power…*\". These interesting appreciations about the value of the political and economic system, which is linked to the *Social and Democratic State of Law*, have an impact on some of the topics of the Treaty, because the intervention of the State is limited beyond what is constitutionally permitted.\n\n**C) Instruments of the Social and Democratic State of Law:**\n\nIn order for the Costa Rican State to fulfill that duty of service provision and assistance to secure for all inhabitants a minimum vital sphere, and to eradicate all obstacles that impede social equity, it is endowed with a series of tools, such as economic policy instruments to support and protect the national producer, and mechanisms that allow the State to intervene in the economy to promote a more just and adequate distribution of wealth, among many others. All these instruments, as will be discussed below, are diminished, weakened, and neutralized by certain provisions contained in the consulted bill, as explained further below.\n\n**II.- CONFRONTATION OF THE PROVISIONS OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN CENTRAL AMERICA, ON THE ONE HAND, AND THE EUROPEAN UNION AND ITS MEMBER STATES, ON THE OTHER, WITH THE INSTRUMENTS OF THE SOCIAL AND DEMOCRATIC STATE OF LAW:**\n\n**A) On the unconstitutionality of the faculty provided for in Article 6.2 of the Treaty, which confers binding character on the decisions adopted by the Association Council.**\n\nAs stated in the dissenting vote to ruling No. 2007-09469, in which the accumulated Consultations number 07-005632-0007-CO and 07-007153-0007-CO, filed respectively by Lisbeth Quesada Tristán and deputies Rafael Elías Madrigal Brenes, Alberto Salom Echeverría, José Merino del Río, Ronald Solís, Marvin Rojas Rodríguez, José Joaquín Salazar, Nidia M. González, Leda Zamora Chaves, Andrea Morales, Sadie Bravo de Maroto, Grettel Ortiz Alvarez, Patricia Quirós Quirós, Francisco Molina Gamboa, Lesvia Villalobos Salas, José Rosales, Olivier Pérez González, Oscar López, Elizabeth Fonseca, and Orlando Murillo, were resolved, regarding the approval bill for the \"*Free Trade Agreement between the Dominican Republic, Central America and the United States*\", a substantive defect is noted in the content of the Treaty, insofar as binding character is given to the decisions of the Association Council. In this regard, on that occasion it was considered:\n\n*\"According to subsection 2 of Article 10.23 of the consulted Treaty, the decisions of this Commission are binding for our Courts. Literally, such provision states:*\n\n*\"Article 10.23: Interpretation of the Annexes*\n\n*… 2. The decision issued by the Commission pursuant to paragraph 1 shall be binding on the tribunal, and any decision or award issued by the tribunal shall be consistent with that decision. If the Commission fails to issue such a decision within the 60-day period, the tribunal shall decide the matter.\"*\n\n*This provision inserted in this Treaty establishes such binding nature, unlike other Free Trade Agreements signed and ratified by Costa Rica where no clause is established determining that the interpretations regarding legal provisions made by the Commission are binding on the Parties. Precisely this addition has a qualitative impact against the Constitution, a situation that makes this provision unconstitutional. Thus, this Commission would not only have broad powers of interpretation, but these would be of mandatory compliance for the Judicial Courts and administrative bodies, as established in Article 20.20.2:*\n\n*\"Article 20.20: Proceedings before Internal Judicial and Administrative Instances*\n\n*…*\n\n*2. The Party in whose territory the tribunal or administrative body is located shall present to them any interpretation agreed upon by the Commission, in accordance with the procedures of that forum. \"*\n\nIn the specific case, it is observed, as in the aforementioned case, that the decisions of the Association Council are binding, which constitutes a breach of the sovereignty of the Nation. The foregoing is aggravated by the fact that the decisions of said Council, in the case of the Central American countries, are adopted by consensus, which could lead to a decision being made with which Costa Rica's representative has not agreed (taking into consideration that consensus is not synonymous with unanimity). All of which is openly contrary to Constitutional norms, principles, and values, since not only can this Association Council exercise powers exclusive to the Powers of the Republic (such as modifying and interpreting the provisions of the Treaty), but also its recommendations are materially binding, including for the Judicial Courts. The infringement of the provisions of the aforementioned Agreement against the Law of the Constitution is evident, which is why its unconstitutionality must be declared.\n\n**B) On the unconstitutionality of what is provided for in environmental matters.**\n\nAs in the case decided in ruling No. 2007-09469, it is considered that the existing regulations in the Treaty under study regarding environmental matters are violative of the provisions of numeral 50 of the Political Constitution.\n\nIn this regard, although the Treaty insists on the obligation of States Parties to respect domestic environmental laws, as well as to pursue sustainable development, the truth is that trade in forest resources is permitted without further limitation. In this vein, article 289 thereof stipulates:\n\n\"Article 289. Trade in forest products.\n\nIn order to promote the sustainable management of forest resources, the parties undertake to work together to improve the application of forest legislation and governance, through instruments that may include, among other things: the effective use of CITES with respect to endangered timber species; certification schemes for sustainably harvested forest products; and regional or bilateral voluntary partnership agreements on forest law enforcement, governance and trade (hereinafter FLEGT).\"\n\nWith which the movement of sensitive or endangered forest products is covertly permitted, trade that should not occur under any circumstances, in strict compliance with the environmental provisions in force in the country, as well as with the International Human Rights Instruments applicable in the Republic. It is clear that the regulations of this agreement are somewhat complex and constitute a perverse mechanism that conceals situations in which the guarantee provided for in constitutional article 50 is clearly violated. In relation to the foregoing assertion, what the Constitutional Chamber stated in Voto nº 1304-93 is pertinent:\n\n\"All of human life occurs in an inevitable relationship with its environment, especially with the improvement of the quality of life, which is the central objective that development requires, but this must be related to the environment in such a way that it is harmonious and sustainable.\n\nThe environment must be understood as a development potential to be used appropriately, and actions must be taken in an integrated manner in its natural, sociocultural, technological, and political relations, since otherwise its productivity for the present and the future is degraded and the heritage of future generations could be put at risk. The origins of environmental problems are complex and correspond to an articulation of natural and social processes within the framework of the socioeconomic development style adopted by the country. For example, environmental problems arise when the methods of exploiting natural resources lead to a degradation of ecosystems beyond their capacity for regeneration, which results in broad sectors of the population being harmed and generates a high environmental and social cost that leads to a deterioration in the quality of life; precisely because the primary objective of the use and protection of the environment is to obtain development and evolution favorable to the human being. Environmental quality is a fundamental parameter of that quality of life…, but more important than that is to understand that although man has the right to use the environment for his own development, he also has the duty to protect and preserve it for the use of present and future generations.\"\n\nIn this way, all infra-constitutional norms must be interpreted and applied in accordance with the Constitution, the precedents, and the jurisprudence of the Constitutional Chamber (ruling 1185- 95, 1893-95, 6192-95, 1056-96, 4256-99, 1999-07181, 07371-99, 2000-08193, and 2002-01228). For this reason, the present mandatory consultation of constitutionality must be resolved to the effect that what is provided in article 289 of the Treaty violates the Law of the Constitution.\n\nC) Regarding the unconstitutionality of the mechanism provided in the Association Agreement between Central America, on the one hand, and the European Union and its Member States, on the other, with respect to dispute settlement.\n\nIt is considered that articles 308 and following of the alluded Association Agreement are unconstitutional, in that they obligate the Costa Rican State to resolve its disputes with respect to another non-Central American Party to the Treaty regarding the interpretation or application of Part IV of the Agreement, first, to the mechanism of Consultations (see article 310 thereof), as well as before the Special Group (see article 311 ibidem), violating the sovereign power of the State to decide whether or not to accede and what matters it will submit to these processes proposed by a Party to the Agreement. What these provisions mean is that the Costa Rican State is granting a type of prior, generic consent for all cases presented to it; this would evidently be an unconstitutional provision, basically because these procedures, in order to be so, must be absolutely voluntary, and it cannot be interpreted that this will is established once and for all, but rather it must be manifested in each specific case, especially taking into account that there are certain matters – which by their nature – cannot be subject to these dispute settlement processes, such as the exercise of certain public powers. In the specific case, it is clear that the ventilation of the matter before a Special Group constitutes obligatorily submitting the dispute to an arbitration process. It should be taken into account that the same jurisprudence of this Constitutional Court has determined that article 43 of the Political Constitution establishes that everyone has the right to terminate their disputes, of a patrimonial nature, through arbitrators; and that the exercise of such right is strictly voluntary as it requires a meeting of the minds between the conflicting parties. As this Chamber has correctly pointed out on a previous occasion:\n\n\"(…) parallel to the right that individuals have to resort to the Courts of Justice to obtain a 'fulfilled' pronouncement, that is, correct, useful, the constituent provided in article 43 'the right' of every person to resort, of course, voluntarily, to the arbitral procedure to settle their patrimonial differences. The use of this alternative route presupposes a meeting of the minds between the parties. (…)\" (Sentencia n.º 2307-95, of 16:00 hours on May 9, 1995).\n\nIt follows from the foregoing that the essence of arbitration lies in the autonomy of the will of the parties. Indeed, it is the conflicting parties who must select both the arbitrators (in this case, the members of the Special Group) and the procedure within which they will govern their actions and the effects that the final resolution will have. Thus then, arbitration is an alternative dispute resolution method, with constitutional character, but for it to be so, it must be voluntary (resolución número 2005-02995 of fourteen hours forty-five minutes on March sixteen, two thousand five). To the extent that arbitration is established in a mandatory manner (or with a prior, generic consent without exception), this figure would be denatured, and therefore, violating in addition to Constitutional article 43, the principle of national sovereignty according to which the government - acting as the representative of the people - has the right to decide, by itself, which disputes are resolved through an arbitral process (that is, through the use of the Special Group figure) and which are not. A question to be determined on a case-by-case basis and that prevents a type of consent given in advance generically for all types of disputes. It is for this reason that the mechanism provided from articles 308 and following of the Association Agreement with respect to the dispute settlement mechanism is unconstitutional.\n\nD) Regarding the reference to the Central American Court of Justice as an organ of Central American integration, despite the fact that the Republic of Costa Rica has never admitted the jurisdiction or competence of that Jurisdictional Body: finally, the preamble of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, is unconstitutional, insofar as it literally states: \"RECOGNIZING the progress achieved in the Central American economic integration process, such as the ratification of the Framework Agreement for the strengthening of the Central American Customs Union and the Treaty on Investment and Trade in Services, as well as the application of a jurisdictional mechanism that guarantees compliance with regional economic legislation throughout the Central American region\", as it constitutes a direct, explicit, and unequivocal reference to the Central American Court of Justice, which is the Supranational Jurisdictional Body of the Central American Integration System and is responsible for ensuring the interpretation and application of Central American Community Law, whose jurisdiction and competence, however, has not yet been recognized by the Republic of Costa Rica. For that reason, and in view that our country has not yet endorsed the Jurisdiction of that Court, any explicit reference made to it in an international treaty approved by the country is unconstitutional, for circumventing the scope of articles 7 and 121 subsection 4) of the Fundamental Text.\n\nE) Regarding the violation of the Constitution by the progressive liberalization clause for establishment and trade in services: For the same reasons set forth previously, the progressive liberalization clause for establishment and trade in services provided in article 159 of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, is contrary to article 50 of the Political Constitution and to the scope of the Social and Democratic State of Law, insofar as it disregards state policies that seek an equitable distribution of wealth among less favored sectors. Based on the foregoing, the consultation made must be resolved to the effect that what is provided in article 159 of the Agreement is unconstitutional.\n\nIII) IN CONCLUSION.-\n\nIn accordance with the foregoing, the undersigned Magistrates dissent and resolve the consultation made to the effect that the present bill for the approval of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, legislative file No. 18.563 contains defects of form and substance.\n\nGilbert Armijo S. Fernando Cruz C.\n\nDissenting vote of Magistrate Armijo Sancho.\n\nRegarding the violation of the principle of publicity because the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, was not published in its entirety.\n\nOn this matter, the undersigned Magistrate considers that the fact that this Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, and its annexes were not published in their entirety constitutes a gross violation of the principle of publicity, as well as of legislative due process. Indeed, after reviewing the publication of the bill in the Official Gazette La Gaceta No. 220 of November 14, 2012, Alcance Nº 180 (see website: http://www.gaceta.go.cr/pub/2012/11/14/ALCA180-2_14_11_2012.pdf, consulted on June 19, 2013), 2 folios corresponding to the First Annex are missing. In this vein, after reviewing the text of the Agreement in La Gaceta, the absence in the publication of the page visible at folio 1006 of the certified copy (EU/CENTR-AM/Annex I/es 544), as well as folio 1572, is verified, which correspond to Annex I of the Agreement, which deals with the elimination of customs duties on the occasion of the Agreement. For that reason, and in view that the consulted bill was not published in its entirety, the undersigned Magistrate considers that this constitutes a substantial defect in the legislative procedure, which must be warned on this occasion. Consequently, the consultation made must be resolved to the effect that the approval process of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States is unconstitutional.\n\nGilbert Armijo S.\n\n13-006008-0007-CO\n\nIn this context, it should be underscored that following the amendment to Article 9 of the Political Constitution (Law No. 8364 of July 1, 2003, published in La Gaceta No. 146 of July 31, 2003), the characteristic of \"participatory\" was introduced as a constitutive element of the Government of the Republic. This quality enhances, at a constitutional level, the fundamental purpose of publicity: to promote the intervention of the citizenry in the fundamental decisions of the State. If this purpose is not undermined and it is observed that there has been no true obstruction to popular participation, then an error in the publication cannot, by itself, constitute an essential defect (vicio esencial) of the legislative procedure. In the sub iudice case, contrary to what occurred in judgment number 2013-006969, the International Relations Committee always had the correct and complete version of the text of the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other\". Likewise, it is fully verifiable that the deputies of the Legislative Assembly at all times had the full text of the Agreement at their disposal and based their discussions, motions, and the will expressed in their reports (dictámenes) and votes on it. Likewise, the authorities and persons to whom the respective hearings were granted always had the complete text of the Agreement at their disposal. Thus, it is not observed that the error in the publication derived in harm to the essential content of the principle of publicity, and therefore no defect of unconstitutionality has occurred. The case is different when not even Parliament itself has had the full text of the project to be approved, or when it contains errors, or when the legislator itself has introduced important changes to the original version of a project while it is being discussed in a committee (which in the instant case would have been, in any case, improper because Article 361 of the Agreement does not allow unilateral reservations or interpretative declarations to it)...\" Judgment 8252-13\n\nPart III (articles 24 to 76) is dedicated to “Cooperation,” mainly oriented towards enabling certain cooperation mechanisms necessary within the areas of interest identified by mutual agreement between the Parties. Finally, Part IV, called “Trade” (articles 77 to 351), contains elements typical of a free trade agreement, which in 21 titles regulates components such as “trade in goods” (GATT), “trade in services” (GATS), “investment” (current payments and capital movements -TRIMs-), “intellectual property” (TRIPS), and “dispute settlement” (DSU). This Part IV also includes aspects related to the interregional nature of the Agreement and other topics such as the title on Trade and Sustainable Development, the one on Trade and Competition, and the annexed Protocol on Cultural Cooperation.\n\nIn the second article of the bill submitted for consultation, the approval of an Amendment to the “Convention on International Trade in Endangered Species of Wild Fauna and Flora” is ordered, since its ratification has been part of the political negotiation with the European Union. Costa Rica is already a Party to said Convention and the Amendment is intended to allow the participation of regional blocs or supranational organizations (such as the EU) in said Convention, and not only States in their individual conception.\n\nIn articles three and four of the bill, a Land Border Posts Council is expressly created and provided with the necessary financial resources, for which purpose an exit tax through land ports and a tax on each customs export declaration (likewise through land border posts) are created.\n\nLastly, in the fifth ordinal, it is decided to assign the Ministry of Foreign Trade the representation of the country before the Organisation for Economic Co-operation and Development (OECD).\n\n**III.- Preliminary considerations.** First, it is necessary to recall the necessary distinction that must be made in this type of matter between aspects of opportunity or economic and socio-political convenience, on one hand, and the questions of constitutionality of these international instruments, on the other. In ruling number 2007-09469 of 10:00 a.m. on July 3, 2007, it was stated: “(…) this Constitutional Court, by virtue of the constitutional and legal powers conferred upon it, which are summarized in the goal or purpose of guaranteeing the supremacy of the Constitution (article 10 of the Constitution and article 1° of the Law of Constitutional Jurisdiction), does not have jurisdiction to weigh the opportunity, convenience, or merit of a Free Trade Agreement. The constitutional bodies in charge of political or governmental direction and responsible for designing and implementing the main public social and economic policies are the primary ones called upon to carry out that assessment. Thus, the Executive Branch in the strict sense—President and Minister of the sector—prior to exercising the power contained in article 140, subsection 10), of the Constitution to conclude public agreements and treaties, is the one that must carry out this analysis. Likewise, the Legislative Assembly, in exercise of the legislative power—which resides in the people and is delegated to it through suffrage, article 105, paragraph 1°, of the Constitution—is a body called upon, before exercising its competence under article 121, subsection 4°, to approve or disapprove public agreements or treaties, to assess the social, economic, and political opportunity and convenience of an instrument of that nature (…)”\n\nIn short, this Constitutional Court is responsible, solely and exclusively, in light of the text of the Treaty signed by the Executive Branch, to determine if there is any norm or provision that violates the Law of the Constitution, understanding by this the constitutional principles, values, precepts, and jurisprudence. This Court is constitutionally disqualified and prevented, by the very distribution of competences and organization established by the Political Constitution, from determining whether an international instrument is socially, economically, and politically convenient and opportune for the country, since the object of the constitutional jurisdiction, as established in article 1° of the law that regulates it, is “(…) to guarantee the supremacy of the constitutional norms and principles and of the International or Community Law in force in the Republic, their uniform interpretation and application, as well as the fundamental rights and freedoms enshrined in the Constitution or in the international human rights instruments in force in Costa Rica” (…) Therefore, given the consultations presented, only the aspects that may somehow generate doubts of constitutionality will be analyzed, making it clear that everything related to the convenience or otherwise of the approval, as well as the economic aspects surrounding the Treaty, are not extremes that can be discussed in this forum. On this point, this Chamber already ruled on the occasion of the approval of the Free Trade Agreement signed with Mexico (…)” (the underlining is not original).\n\nThe ruling cited above is fully applicable in this case, where no pronouncement can be issued beyond the control of constitutionality, without intervening in aspects specific to political opportunity.\n\nHaving clarified the point, the first thing that must be done, in order to answer this consultation, is to verify the legislative procedures followed in the sub lite case, in accordance with what is indicated in article 98 of the Law of Constitutional Jurisdiction, by providing that the consultation must be made after the bill is approved in the first debate and before final approval and that, when answering it, the Chamber will rule on any aspects or reasons it deems relevant from the constitutional point of view, but in a binding manner only with regard to procedural steps (ordinal 101 of the Law of Constitutional Jurisdiction). For the above purposes, a chronological summary of the legislative process of the bill under consultation will be made in the following recital.\n\n**IV.- The processing of file Nº 18.563 in the Legislative Assembly.** The bill called “Law Approving the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other; and the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983”, being processed in legislative file Nº 18.563, has followed the following iter:\n\n**1)** On **June 29, 2012,** the Minister of Foreign Trade, Anabel González Campabadal, and the Minister of Foreign Affairs, Enrique Castillo Barrantes, signed the “Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other” (see folios 453 and 454 of the certified copy of legislative file Nº 18.563).\n\n**2)** On **September 6, 2012,** the Minister of the Presidency, Carlos Ricardo Benavides Jiménez, referred to the Legislative Assembly the bill called “Law Approving the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other; and the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983”, for its rigorous processing (see folio 1 of the certified copy of legislative file Nº 18.563).\n\n**3)** On **September 6, 2012,** the bill “Law Approving the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other; and the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983”, file Nº 18.563, was referred to the Permanent Special Committee on International Relations and Foreign Trade (see folio 4.990 of the certified copy of legislative file Nº 18.563).\n\n**4)** On **October 9, 2012,** a certified copy of file Nº 18.563 was referred to the Department of Studies, References, and Technical Services of the Legislative Assembly for the appropriate purpose (see folio 4.991 of the certified copy of legislative file Nº 18.563).\n\n**5)** On **November 13, 2012,** the Director of the Department of Archive, Research, and Processing of the Legislative Assembly referred the bill in question to the National Printing Office for its publication (see folio 4.992 of the certified copy of legislative file Nº 18.563).\n\n**6)** On **November 14, 2012,** in Supplement Nº 180 of the Official Gazette La Gaceta Nº 220, the bill “Law Approving the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other; and the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983”, file Nº 18.563, was published (see http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-1_14_11_2012.pdf, consulted on May 31, 2013).\n\n**7)** On **November 21, 2012,** several Deputies of the Legislative Assembly filed a motion (to which number 3 – 19 was assigned) for legislative file Nº 18.563 to be sent for consultation to the following institutions: all municipalities and District Municipal Councils, all autonomous institutions, University of Costa Rica, National University, Costa Rica Institute of Technology, State Distance University, National Technical University, National Council of Rectors, CONESUP, Supreme Court of Justice, Office of the Attorney General, Supreme Electoral Tribunal, Ombudsman's Office, Ministry of Foreign Affairs and Worship, Ministry of Governance, Police and Public Security, Ministry of Economy, Industry and Commerce, Ministry of Environment, Energy and Telecommunications, Ministry of Health, Ministry of National Planning and Economic Policy, Ministry of Science and Technology, Ministry of Justice and Peace, Ministry of Labor and Social Security, Directorate General of Migration and Foreigners, Costa Rican Coalition of Development Initiatives, National Horticultural Corporation, National Banana Corporation, Grupo ICE, Office of the Comptroller General of the Republic, National Animal Health Service, State Phytosanitary Service, Integral Agricultural Marketing Program, Directorate General of Customs, Regulatory Authority for Public Services, Superintendency of Telecommunications, Costa Rican Petroleum Refinery S.A., National Concessions Council, all Professional Associations, Costa Rican Union of Chambers and Associations of the Private Business Sector, Chamber of Exporters of Costa Rica, Chamber of Industries, Chamber of Agriculture and Agribusiness, Chamber of Commerce, Chamber of the Food Industry, Chamber of Information and Communication Technologies, CRECEX, Livestock Corporation, Chamber of Poultry Farmers, Chamber of Pig Farmers (see folios 4.996 and 4.997 of the certified copy of legislative file Nº 18.563).\n\n**8)** On **November 22, 2012,** in ordinary session Nº 19 of the Permanent Special Committee on International Relations and Foreign Trade, said motion was approved (see folio 4.997 of the certified copy of legislative file Nº 18.563).\n\n**9)** On **November 21, 2012,** several Deputies of the Legislative Assembly filed a motion (to which number 4–19 was assigned) to summon to a hearing the heads and representatives of the following institutions: Chamber of Agriculture and Agribusiness, National Chamber of Pig Farmers, Chamber of Exporters of Costa Rica, Ministry of Foreign Trade, Chamber of Industries of Costa Rica, University of Costa Rica, Chamber of Commerce of Costa Rica, Chamber of the Food Industry, National Chamber of Poultry Farmers, and Livestock Corporation (see folio 1068 of the certified copy of legislative file Nº 18.563).\n\n**10)** On **November 22, 2012,** in ordinary session Nº 19 of the Permanent Special Committee on International Relations and Foreign Trade, this motion was approved (see folio 4.998 of the certified copy of legislative file Nº 18.563).\n\n**11)** On **November 29, 2012,** the Minister of the Presidency informed the Directory of the Legislative Assembly that through Executive Decree Nº 37.411-MP, the Executive Branch had convened extraordinary sessions beginning on the date indicated in the Decree; among the projects included was file Nº 18.563 (see folio 5.402 of the certified copy of legislative file Nº 18.563).\n\n**12)** The Permanent Special Committee on International Relations and Foreign Trade received responses from the following entities consulted: Municipality of Bagaces, Municipality of Belén, Municipal Council of Lepanto, CONESUP, Supreme Electoral Tribunal, Ministry of National Planning and Economic Policy, Ministry of Science and Technology, Directorate General of Migration and Foreigners, Costa Rican Coalition of Development Initiatives, Costa Rican Institute of Electricity, Directorate General of Customs, Regulatory Authority for Public Services, Superintendency of Telecommunications, Costa Rican Union of Chambers and Associations of the Private Business Sector, Chamber of Commerce of Costa Rica, Costa Rican Chamber of the Food Industry, National Bank of Costa Rica, National Production Council, Costa Rican Institute of Aqueducts and Sewers, Institute for Municipal Development and Advisory, National Institute of Women, National Insurance Institute, Social Protection Board of San José, National Children's Trust (see folios 5.804 to 5.817 of the certified copy of legislative file Nº 18.563).\n\n**13)** The Permanent Special Committee on International Relations and Foreign Trade received in hearing: National Chamber of Agriculture and Agribusiness, CADEXCO, Ministry of Foreign Trade, Chamber of Industries of Costa Rica, University of Costa Rica, Chamber of Commerce of Costa Rica, Chamber of the Food Industry, Livestock Corporation, National Chamber of Poultry Farmers (see folios 5.817 to 5.832 of the certified copy of legislative file Nº 18.563).\n\n**14)** On **December 17, 2012,** the Department of Technical Services of the Legislative Assembly delivered the legal report related to the bill being processed under legislative file Nº 18.563 (see folio 5.689 of the certified copy of legislative file Nº 18.563).\n\n**15)** On **December 17, 2012,** through official communication number DM-00743-12, the Minister of Foreign Trade presented to the President of the Permanent Special Committee on International Relations and Foreign Trade several diplomatic notes referring to specific formatting errors that were detected in the texts of the Agreement related to the other Central American countries (excepting the case of Costa Rica); furthermore, she clarified that such formatting corrections do not modify the rights and obligations assumed by our country and the European Union (see folio 5.743 of the certified copy of legislative file Nº 18.563).\n\n**16)** On **December 18, 2012,** the Permanent Special Committee on International Relations and Foreign Trade issued an affirmative and unanimous opinion on the bill called “Law Approving the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other; and the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties in Gaborone, Botswana, on April 30, 1983”, legislative file Nº 18.563 (see folio 5.792 of the certified copy of legislative file Nº 18.563).\n\n**17)** On **January 21, 2013,** the unanimous affirmative opinion of the Permanent Special Committee on International Relations and Foreign Trade was delivered to the Legislative Plenary (see folio 10.836 of the certified copy of legislative file Nº 18.563).\n\n**18)** On **February 5, 2013,** in session Nº 127, the Legislative Plenary began the substantive discussion of file Nº 18.563; however, it had motions filed via article 137 that were sent to the Reporting Committee (see folio 10.910 of the certified copy of legislative file Nº 18.563).\n\n**19)** On **February 7, 2013,** in ordinary session Nº 29 of the Permanent Special Committee on International Relations and Foreign Trade, the motions filed were discussed, and these were ultimately rejected (see folio 10.932 of the certified copy of legislative file Nº 18.563).\n\n**20)** On **February 7, 2013,** the Permanent Special Committee on International Relations and Foreign Trade delivered to the Legislative Directory the first report on the motions referred (see folio 10.930 of the certified copy of legislative file Nº 18.563).\n\n**21)** On **February 7, 2013,** in session Nº 129, the Legislative Plenary continued with the substantive discussion; however, new motions were filed via article 137 that were sent to the Reporting Committee (see folio 11.007 of the certified copy of legislative file Nº 18.563).\n\n22) On February 11, 2013, in extraordinary session No. 31, the Comisión Permanente Especial de Relaciones Internacionales y Comercio Exterior discussed the motions formulated and, finally, rejected them (see folio 11,020 of the certified copy of legislative file No. 18,563).\n\n23) On February 12, 2013, the Comisión Permanente Especial de Relaciones Internacionales y Comercio Exterior delivered the second report on motions referred by the Legislative Plenary (see folio 11,018 of the certified copy of legislative file No. 18,563).\n\n24) On February 12, 2013, in plenary session No. 131, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; however, it had new motions filed that were referred to the Drafting Committee (Comisión Dictaminadora) (see folio 11,043 of the certified copy of legislative file No. 18,563).\n\n25) On February 13, 2013, in ordinary session No. 33 of the Comisión Permanente Especial de Relaciones Internacionales y Comercio Exterior, the motions formulated were discussed and, finally, were rejected (see folio 11,061 of the certified copy of legislative file No. 18,563).\n\n26) On February 14, 2013, the Comisión Permanente Especial de Relaciones Internacionales y Comercio Exterior delivered the third report on the referred motions to the Legislative Directorate (see folio 11,059 of the certified copy of legislative file No. 18,563).\n\n27) On February 19, 2013, in session No. 134, the Legislative Plenary continued with the discussion on the merits; however, new motions were filed that were referred to the Drafting Committee (Comisión Dictaminadora) (see folio 11,081 of the certified copy of legislative file No. 18,563).\n\n28) On February 20, 2013, in extraordinary session No. 35, the Comisión Permanente Especial de Relaciones Internacionales y Comercio Exterior discussed the motions formulated and, finally, rejected them (see folio 11,117 of the certified copy of legislative file No. 18,563).\n\n29) On February 21, 2013, the Comisión Permanente Especial de Relaciones Internacionales y Comercio Exterior delivered the fourth report on motions referred by the Legislative Plenary (see folio 11,115 of the certified copy of legislative file No. 18,563).\n\n30) On February 28, 2013, in plenary session No. 140, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, with the fourth report on motions via article 137 (see folio 11,267 of the certified copy of legislative file No. 18,563).\n\n31) On March 4, 2013, in plenary session No. 141, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, and the first session for the filing of reiteration motions was counted (see folio 11,274 of the certified copy of legislative file No. 18,563).\n\n32) On March 5, 2013, in plenary session No. 142, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, and the second session for the filing of reiteration motions was counted (see folio 11,280 of the certified copy of legislative file No. 18,563).\n\n33) On March 7, 2013, in plenary session No. 144, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563, and the third session for the filing of reiteration motions was counted (see folio 11,286 of the certified copy of legislative file No. 18,563).\n\n34) On March 11, 2013, the Minister of the Presidency communicated to the Directorate of the Legislative Assembly that, through Decreto Ejecutivo Nº 37.585-MP, the Executive Branch had withdrawn several legislative files from consideration in extraordinary sessions, among them No. 18,563 (see folio 11,292 of the certified copy of legislative file No. 18,563).\n\n35) On March 11, 2013, the Minister of the Presidency communicated to the Directorate of the Legislative Assembly that, through Decreto Ejecutivo Nº 37.586-MP, the Executive Branch had extended the call to extraordinary sessions as of the date indicated in the Decreto; among the projects included was file No. 18,563 (see folio 11,294 of the certified copy of legislative file No. 18,563).\n\n36) On March 18, 2013, in plenary session No. 149, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 3 motions were rejected, the first via article 154, the second via article 155, and the third via article 153, to which a motion for review was presented that was also rejected, among other rejected motions (see folio 11,320 of the certified copy of legislative file No. 18,563).\n\n37) On March 19, 2013, in plenary session No. 150, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 motion for review of a motion via article 153 was rejected; in addition, a motion via article 153 was rejected, and a review of that motion was rejected, among other rejected motions (see folio 11,400 of the certified copy of legislative file No. 18,563).\n\n38) On March 21, 2013, in plenary session No. 152, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 2 motions were rejected, one for consultation and another via article 155; subsequently, 1 consultation motion and another via article 153 were rejected (see folio 11,481 of the certified copy of legislative file No. 18,563).\n\n39) On April 1, 2013, in plenary session No. 153, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 7 procedural motions via article 153 were rejected; likewise, 6 motions for review of the aforementioned motions were rejected (see folio 11,506 of the certified copy of legislative file No. 18,563).\n\n40) On April 2, 2013, in plenary session No. 154, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 2 procedural motions via article 153 were rejected; likewise, 2 motions for review of the aforementioned motions were rejected, among various other procedures relating to motions (see folio 11,608 of the certified copy of legislative file No. 18,563).\n\n41) On April 4, 2013, in plenary session No. 156, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 procedural motion via article 153 was rejected; equally, 1 motion for review of the aforementioned motion was rejected (see folio 11,707 of the certified copy of legislative file No. 18,563).\n\n42) On April 8, 2013, in plenary session No. 157, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 7 reiteration motions were rejected; also, 8 motions for review of the aforementioned motions were rejected (see folio 11,731 of the certified copy of legislative file No. 18,563).\n\n43) On April 9, 2013, in plenary session No. 158, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 4 reiteration motions were rejected: in addition, 4 motions for review of the aforementioned motions were rejected (see folio 11,860 of the certified copy of legislative file No. 18,563).\n\n44) On April 16, 2013, in plenary session No. 161, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 postponement motion was rejected; then, 1 motion for review was presented and approved, consequently, the postponement motion was approved (see folio 11,985 of the certified copy of legislative file No. 18,563).\n\n45) On April 16, 2013, in plenary session No. 161, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; a motion was approved to alter the order of business for the Plenary sessions, so that in the second part of the session, file No. 18,563 would occupy the first position among the First Debates (see folio 11,998 and 11,999 of the certified copy of legislative file No. 18,563).\n\n46) On May 1, 2013, Deputy María Jeanette Ruiz Delgado requested that the bill be put on the agenda (see folio 12,009 of the certified copy of legislative file No. 18,563).\n\n47) On May 6, 2013, Deputy Edgardo Araya Pineda requested that the bill be put on the agenda (see folio 12,010 of the certified copy of legislative file No. 18,563).\n\n48) On May 9, 2013, Deputy Edgardo Araya Pineda again requested that the bill be put on the agenda (see folio 12,011 of the certified copy of legislative file No. 18,563).\n\n49) On May 9, 2013, in plenary session No. 6, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; a postponement motion was approved to postpone consideration of file 18,563, which is in the first place of first debates, and to consider the rest of the Order of Business in the subsequent order (see folio 12,012 of the certified copy of legislative file No. 18,563).\n\n50) On May 13, 2013, in plenary session No. 7, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 1 motion for review of a reiteration motion was rejected; likewise, reiteration motion number 14-1 and its respective review were rejected (see folio 12,020 of the certified copy of legislative file No. 18,563).\n\n51) On May 16, 2013, in plenary session No. 10, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; in addition, the motion for review of reiteration motion number 25 was announced (see folio 12,058 of the certified copy of legislative file No. 18,563).\n\n52) On May 14, 2013, in plenary session No. 8, the Legislative Plenary continued with the discussion on the merits of bill No. 18,563; 6 reiteration motions were rejected; likewise, 6 motions for review of the aforementioned motions were rejected; subsequently, 4 reiteration motions were withdrawn (see folio 12,066 of the certified copy of legislative file No. 18,563).\n\n53) On May 21, 2013, in plenary session No. 12, the Legislative Plenary continued with the discussion on the merits of the bill “Ley de Aprobación del Acuerdo por el que se establece una asociación entre Centroamérica, por un lado, y la Unión Europea y sus Estados Miembros, por otro; y la aprobación por parte de la República de Costa Rica de la Enmienda al artículo XXI de la Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres, adoptada en reunión extraordinaria de la Conferencia de las Partes, en Gaborone, Botsuana, el 30 de abril de 1983”, file No. 18,563, which was voted on in first debate with thirty-seven Deputies in favor and four against (see folio 12,387 of the certified copy of legislative file No. 18,563).\n\n54) On May 24, 2013, the Comisión Permanente Especial de Redacción received file No. 18,563 from the Secretariat of the Directorate to continue with the respective procedure (see folio 12,390 of the certified copy of legislative file No. 18,563).\n\n55) On May 28, 2013, the Department of Technical Services presented a Report for the Comisión Especial de Redacción, with some observations for legislative file No. 18,563 (see folio 12,399 of the certified copy of legislative file No. 18,563).\n\n56) On May 28, 2013, in ordinary session No. 1, the Comisión Permanente Especial de Redacción discussed matters relating to bill No. 18,563 and approved its final wording (see folios 12,403 and 12,430 of the certified copy of legislative file No. 18,563).\n\n57) On May 28, 2013, the Comisión Permanente Especial de Redacción delivered the Final Wording of file No. 18,563 to the Secretariat of the Directorate (see folio 12,441 of the certified copy of legislative file No. 18,563).\n\nV.- On the legislative procedure in the specific case. In accordance with the provisions of article 98 of the law governing this Jurisdiction, this Court reviewed the legislative procedure for the processing of the bill entitled “Ley de Aprobación del Acuerdo por el que se establece una asociación entre Centroamérica, por un lado, y la Unión Europea y sus Estados Miembros, por otro; y la aprobación por parte de la República de Costa Rica de la Enmienda al artículo XXI de la Convención sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestres, adoptada en reunión extraordinaria de la Conferencia de las Partes, en Gaborone, Botsuana, el 30 de abril de 1983”. This Agreement was signed by the Minister of Foreign Trade, Anabel González Campabadal, and the Minister of Foreign Affairs, Enrique Castillo Barrantes. The former was empowered to proceed in such a manner, by virtue of the provisions of article 2, subsections b) and d), of Ley Nº 7638 of October 30, 1996, which created the Ministerio de Comercio Exterior and Promotora de Comercio Exterior, and what was indicated by the Constitutional Court in Voto 8190-2002 of 11:12 a.m. on August 23, 2002:\n\n“(…) IV.- Signing of the Treaty. This Chamber considers that the signing of the Free Trade Treaty between Costa Rica and Canada by the Minister of Foreign Trade, without the concurrence of the President of the Republic, is not contrary to Constitutional Law. From a reading of article 140, subsection 10), it is inferred that the signing of international treaties is an attribution of the Executive Branch, understood as the collegiate body composed of the President and the Minister of the relevant Branch. However, the Vienna Convention on the Law of Treaties itself, approved by Law number 7615 of July twenty-fourth, nineteen ninety-six, in its article 7 provides, as relevant:\n\n“ARTICLE 7.- Full powers. 1.- For the adoption or authentication of the text of a treaty, or for expressing the consent of the State to be bound by a treaty, a person shall be considered as representing a State: (a) If he produces appropriate full powers; or (b) If it appears from the practice of the States concerned, or from other circumstances, that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. (...)”\n\nIn the present case, we are faced with the situation described in subsection b) of paragraph 2 transcribed above, in referring to “other circumstances” that demonstrate the State's will to be represented by a specific official. This is because Law number 7638 of October thirty, nineteen ninety-six, gives the Minister of Foreign Trade sufficient competence to negotiate and sign, without the concurrence of whoever holds the Presidency of the Republic, conventions such as the one brought for consultation, even without a letter of full powers. Of relevance, article 2 states: “ARTICLE 2.- Attributions The attributions of the Ministry of Foreign Trade shall be: (...) b) To direct bilateral and multilateral trade and investment negotiations, including matters relating to Central America, and to sign treaties and conventions on those matters. By agreement, the Executive Branch may authorize that treaties and conventions, as well as their amendments, be signed by the heads of other ministries or public entities of the State that have specific legal competence over the subject matter of the treaty or convention.”\n\n(...)\n\n\n\n
Finally, through judgment number\n4640-96 at 09:09 a.m. on September 06, 1996, the Chamber heard the\nmandatory consultation of constitutionality regarding the bill of Law for the\napproval of the Protocol to the General Treaty on Central American Economic\nIntegration (known as the Protocol of\nGuatemala), signed by the Governments of the Republics of Costa Rica,\nEl Salvador, Guatemala, Honduras, Nicaragua, and Panama, in Guatemala City\non October 29, 1993.\n\nOn that occasion, this Tribunal made reference to the same legal grounds set forth in vote number 4638-96 of 09:03 hours on September 6, 1996, and it was considered that since the cited Protocol was an integral part of a system of transfer of competences, which results in a community system (even when the transfer of competences was not given expressly in that specific case, although it was foreseen in the Tegucigalpa Protocol), this implied that its approval required a qualified vote, in the terms indicated in the second paragraph of subsection 4 of Article 121 of the Political Constitution. However, it is worth noting that the concept of \"community legal order\" in said norm is different from that of a \"multilateral treaty,\" given that the former requires a *ratio iuris* aimed at the formation of a \"community,\" that is, a system of regional integration with supranational qualities aimed at different parts constituting, at least progressively, a whole (as was the case in the European Coal and Steel Community), in which a transfer of sovereign powers has operated from the Member States towards a *sui generis* legal order, whose organs enjoy independence and full authority in the exercise of their functions. Such transfer, in the case of Costa Rica and by virtue of subsection 4 of Article 121 of the Political Constitution, can only be made towards a true community legal order, unlike other conventional instruments.\"\n\nConsequently, the requirement of a qualified vote of two-thirds of the total number of deputies set forth in Article 121(4) of the Political Constitution only refers to those treaties or conventions that attribute or transfer certain competences to a community legal order. This latter concept refers to an order that, beyond promoting mere international cooperation among States, actually seeks the full integration of the countries involved, thereby aspiring to configure a new legal order of international law (the Community) characterized by its independence and primacy, consubstantial characteristics of its existence.\n\nA fundamental quality of this type of order consists of the possibility that new obligations may be imposed on a State, even against its will, by extranational organs, in matters that, otherwise, would be exclusively for it to decide. Consequently, this is a very different situation from those treaties or conventions in which international organizations, in order to bind a country with their resolutions, require the express acceptance of the affected State, through its legitimate competent representatives for that purpose.\n\nThus, the constitutional concept of \"community legal order\" is very different from that of a \"multilateral treaty,\" given that the former requires a *ratio iuris* directed at the formation of a \"Community,\" that is, a system of regional integration with supranational qualities aimed at different parts constituting, at least progressively, a whole (as was the case in its time with the European Coal and Steel Community), in which a transfer of sovereign powers has operated from the Member States towards a *sui generis* legal order, whose organs enjoy independence and full authority in the exercise of their functions, and can even impose their will on their Member States. Such a community goes beyond a new international legal order, as it even aspires to intertwine cultural ties in order to create a community with a certain common identity, a matter that is far from the pretensions of economic institutions that only seek integration, commercial exchange, and economic cooperation among States. It should be added that when Article 121(4) of the Political Constitution alludes to the transfer of certain competences to a community legal order, the purpose of achieving regional and common objectives, also mentioned by that norm, rather than consisting of an additional supposition, actually signifies a natural effect of the proper legal nature of every community order. There is no community order that does not tend to achieve regional and common objectives.\n\nIn the instant case, this Chamber considers that the Association Agreement under review is in no way directed at creating a community legal order. Indeed, Article 2(a) of the Agreement indicates as an objective to strengthen and consolidate relations between the Parties through an association, and paragraph (b) emphasizes that it is a privileged political association. This concept of association is presented in a context where both regions (Central America and Europe) remain in their respective regional spheres of action, without there being at any moment the aspiration to create a single region. Nor is the establishment of a community legal order intended within the Central American Party, since Article 3 of the Agreement establishes that none of its provisions shall be interpreted in such a way as to undermine the sovereignty of any Republic of the CA Party. The fact that, in order to apply the Agreement, it is positive to promote regional integration, goes no further than the creation of a political environment favorable to bi-regional cooperation and commercial relations as well as the general execution of the Agreement, which in no way implies either the establishment of a community legal order, a new legal order of international law, much less the erection of a Community in the Central American sphere. Likewise, although paragraph 72 of the Agreement has as an objective of cooperation the regional integration and progressively achieving an economic union in Central America, the truth is that reference is made to possible destinations of cooperation from a potential perspective, not to the current concretion of a Community through the approval of the Agreement, much less to a new legal order of international law.\n\nThis thesis becomes even more palpable considering that according to Article 6.4 of the Agreement, the Association Council can only adopt decisions and recommendations by common agreement between the Parties and, in the case of the Republics of the CA Party, the adoption of decisions and recommendations will require consensus. Ergo, without the acquiescence of the Costa Rican State, it cannot be forced to comply with any resolution, which implies that there is no transfer of sovereign powers from the Member States towards a *sui generis* legal order, whose organs enjoy such a degree of independence and full authority as to be able to impose on Costa Rica a resolution against the will of our country (A more extensive explanation about this Council is given in Considerando IX of this judgment).\n\nConsequently, since the supposition of Article 120(4) of the Political Constitution is not configured, this Treaty does not require for its approval the vote of two-thirds of the total number of deputies, but rather can be voted on as provided by article 119 of the Fundamental Law, that is, by an absolute majority of the votes present.\n\n**VII.- On the violation of the principle of publicity**. Recently, by means of judgment number 2013-006969 of 15:05 hours on May 22, 2013, this Tribunal declared the following:\n\n\"IV.- ON THE PROCEDURE IN THE SPECIFIC CASE. From the breakdown contained in the previous point it is possible to verify that, on December 5, 2011, the Executive Branch presented before the Legislative Assembly the bill for the 'Approval of the Convention concerning Decent Work for Domestic Workers (Convention 189)', for its respective study and approval, in application of Articles 121, subsection 4, and 140, subsections 5, 10 and 12, of the Political Constitution. Said convention had been adopted, in turn, at the 100th Meeting of the International Labour Conference of the International Labour Organization (ILO), held in June 2011. As part of the corresponding legislative procedure, the bill was published in Digital Supplement No. 51 of La Gaceta No. 78 of April 23, 2012. Likewise, a legal report was rendered by the Department of Technical Services of the Legislative Assembly, the bill was ordered to be consulted with various organs and institutions, and, finally, after its study by the Permanent Special Commission on Legal Affairs, a first affirmative report was rendered. Subsequent to this, the bill was approved in the first debate, unanimously, in plenary session of the Legislative Assembly number 64 of September 13, 2012, with 40 votes. Thus, the file passed to the Permanent Special Drafting Commission. However, at that stage or phase of the procedure, it was detected that the certified copy of the text of the 'Convention concerning Decent Work for Domestic Workers (Convention 189)', which had initially been provided by the Executive Branch, did not contain the complete text corresponding to Article 22. This prompted the order to return the legislative file to the Legislative Plenary. In session of the Legislative Plenary number 72, of September 27, 2012, a motion was approved, in application of Article 154 of the Regulations of the Legislative Assembly, in the sense of referring the bill to the Permanent Commission on Legal Affairs so that it could issue a new report. As a product of the foregoing, the referred Commission proceeded again to study the bill and confirmed that, indeed, the certified copy of the text of the 'Convention concerning Decent Work for Domestic Workers (Convention 189)', which had been sent by the Executive Branch, did not contain the complete or integral text of the cited international instrument, due to an apparent material error in the process of photocopying the text. This generated that, by means of official letter No. CJ-863-10-12, of October 24, 2012, the President of the Permanent Commission on Legal Affairs requested the Minister of Labor and Social Security that 'in order to correct the material error found in the report of the Bill for the approval of the convention concerning decent work for domestic workers (Convention 189), File No. 18335, initially sent and approved by this Commission, I request your good offices and respecting the right of initiative, as the sending of the document and all communications sent to the country is required, with the signatures of the members of the Executive Branch, which attest to the commitment of the Republic of Costa Rica regarding that international legal instrument.' In response to this request, through official letter DP-0643-2012, dated October 26, 2012, signed by the President of the Republic and the Minister of Labor and Social Security, a new certified copy of the complete text of the 'Convention concerning Decent Work for Domestic Workers (Convention 189)' was sent to the Permanent Commission on Legal Affairs. Based on this second certified copy, the Permanent Commission on Legal Affairs rendered a new affirmative report, and in session of the Legislative Plenary number 106, of November 29, 2012, the bill was approved again, in the first debate, with 43 votes. Now, contrasting or comparing both documents, that is, the certified copies sent by the Executive Branch to the Legislative Assembly on December 5, 2011, and those sent through official letter DP-0643-2012, of October 26, 2012, it is verified that, certainly, the first set of certified copies did not contain the integral or complete text of Convention 189, because, due to an apparent material error, at the time of photocopying the text that would be sent to the Legislative Assembly, the last line of several pages of the international instrument was omitted from photocopying, which caused several articles contained in such copies to be incomplete, mutilated, or unfinished. Specifically: i) Article 2, second paragraph, subsection b), was missing the phrase: 'special substantive characteristics'; ii) Article 6, sole paragraph, was missing the phrase: 'for whom they work, decent living conditions that respect their privacy'; iii) Article 9, sole paragraph, was missing subsection c), which has the following content: 'c) are entitled to keep their travel and identity documents in their possession'; iv) Article 13, second paragraph, was missing the phrase: 'of domestic workers, when such organizations exist'; v) Article 16, sole paragraph, was missing the phrase: 'national practice, to ensure that all domestic workers, whether'; and vi) Article 22, first paragraph, was missing the phrase: 'one year after the date on which it has been registered'. Faced with this, it was appropriate for the Legislative Assembly to seek the correction of the legislative procedure and, in particular, to roll back the procedure, so that the Executive Branch could provide a new certified copy of the referred convention, but this time complete or integral, so that it could be the subject of new study, discussion and, eventually, legislative approval. This Chamber has insisted in its jurisprudence on the due distribution, delimitation, and respect of the constitutional competences attributed to the Executive Branch and the Legislative Assembly, regarding the process of discussion, negotiation, and signing of international treaties by the Executive Branch (Article 140(10) of the Political Constitution), and their subsequent approval or disapproval by the Legislative Assembly (Article 121, subsection 4, of the Political Constitution). Thus, regarding this topic, in judgment number 2005-07428 of 16:47 hours on June 14, 2005, this Chamber clarified: (\") it is clear from the constitutional text that the main competence,\" for the formulation and negotiation of international treaties, public conventions, and concordats, corresponds to the Executive Branch and indeed, it is to the latter that their negotiation, signing, and ratification corresponds. The Legislative Assembly, for its part, is only responsible for the function of approving or disapproving them\". In accordance with the foregoing, this Chamber has indicated that it is indispensable that the text submitted for approval be a complete, correct, and exact text, otherwise a substantial defect in the legislative procedure and in the expression of the will of the parliamentary organ is produced…\n\n… Finally, it is clear from judgment No. 2006-06011 that the Chamber ordered that:\n\n'In this regard, this Tribunal reiterates that it is indispensable that the text submitted for approval be complete, clear, exact, delimited, so that there is no doubt whatsoever as to the object of the International Law obligation that our country assumes, and as a guarantee of the principles of legal certainty, publicity, and transparency.' (the bolding is not from the original)\"\n\nTherefore, it is reiterated that the determination of the Legislative Assembly was appropriate, in the sense of rolling back the legislative procedure and urging the Executive Branch to provide a new certified copy of the convention, with its integral and complete text, in order to seek the correction of the procedure. Notwithstanding the foregoing, it must be indicated that an essential defect in the legislative procedure is still noted. This is because, upon reviewing the bill published in Digital Supplement No. 51 of La Gaceta No. 78 of April 23, 2012 (see the same at http://www.gaceta.go.cr/pub/alcances/ALCA_2012.html), it is verified that the text published at that time contained the errors or omissions already pointed out (that is: several of the articles published were incomplete, mutilated, or unfinished). With the prejudice that, upon reviewing the legislative file, it is not accredited that the bill was published again in the Official Gazette, but this time integral or complete, or that any type of correction or clarification was published, in accordance with the provisions of Articles 116, 117, and 121 of the Regulations of the Legislative Assembly. This prior to the bill being the subject of new study, discussion, and report by the mentioned Commission and of discussion and approval by the Legislative Plenary. From which it can be deduced that a violation of the principle of publicity has been incurred.\"\n\nConsequently, regarding the above-cited precedent, it is convenient to highlight the following characteristics that explain the *ratio iuris* of the judgment:\n\n1. The certified copy of the Convention to be approved (Convention concerning Decent Work for Domestic Workers) was sent incompletely *ab initio* by the Executive Branch and the corresponding publication in La Gaceta was equally defective.\n2. The Chamber admitted as appropriate that the Legislative Assembly sought the correction of the legislative procedure and, in particular, to roll back the procedure, so that the Executive Branch could provide a new certified copy of the referred convention.\n3. The publication of the Convention only occurred once, before the Commission received the new certified copy correctly, without proceeding with a new publication in La Gaceta; quite the contrary, it settled for the first publication that contained the errors pointed out from the beginning (several of the articles published were incomplete, mutilated, or unfinished). Thus, the intended correction of the procedure ordered by the Legislative Assembly itself did not actually occur.\n\nIn the *sub examine*, it must first be emphasized that the error of the Commission on International Relations analyzing the bill in question based on an incomplete certified copy did not occur. On the contrary, it is clear from the record that said Commission and the hearings granted to the various agencies and persons consulted were based on a correct version of the bill in question. However, in the electronic publication of La Gaceta No. 220 of November 14, 2012, Supplement No. 180, (http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-2_14_11_2012.pdf) 2 folios corresponding to the First Annex are missing. Indeed, in the digital La Gaceta, the absence in the publication of the page described as EU/CENTR-AM/Annex I/en 544 is verified, visible at folio 1006 of the certified copy sent by the Assembly in Volume III of the bill in question, as well as folio 1572 of the certified copy sent by the Assembly in Volume V. Both folios correspond to Annex I, which deals with the elimination of customs duties under the Agreement.\n\nIn the case of folio 1006 of the certified copy, the omission of its publication implies that the following products from the EU Party list were not published:\n\n| 5515 91 | -- Mixed exclusively or principally with synthetic or artificial filaments: | | | |\n| 5515 91 10 | --- Raw or bleached | 8 | A | |\n| 5515 91 30 | --- Printed | 8 | A | |\n| 5515 91 90 | --- Others | 8 | A | |\n| 5515 99 | -- Others: | | | |\n| 5515 99 20 | --- Raw or bleached | 8 | A | |\n| 5515 99 40 | --- Printed | 8 | A | |\n| 5515 99 80 | --- Others | 8 | A | |\n| 5516 | Woven fabrics of artificial staple fibres: | | | |\n| | - Containing 85 % or more by weight of artificial staple fibres: | | | |\n\nFor its part, regarding folio 1572 of the certified copy, the omission meant that the following products from the CA Party's List were not published:\n\n| Código SAC 2007 | Descripción | Tasa base CA | Categoría | Tasa base | | | | | Comentarios |\n| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- |\n| 5516 11 00 | -- Unbleached or bleached | 8 | A | | | | | | |\n| 5516 12 00 | -- Dyed | 8 | A | | | | | | |\n| 5516 13 00 | -- Of yarns of different colours | 8 | A | | | | | | |\n| 5516 14 00 | -- Printed | 8 | A | | | | | | |\n| | - Containing less than 85% by weight of artificial staple fibres, mixed mainly or solely with synthetic or artificial filaments: | | | | | | | | | |\n| 5516 21 00 | -- Unbleached or bleached | 8 | A | | | | | | |\n| 5516 22 00 | -- Dyed | 8 | A | | | | | | |\n| 5516 23 | -- Of yarns of different colours: | | | | | | | | |\n\nIRON ORES AND CONCENTRATES, INCLUDING ROASTED IRON PYRITES (PYRITE ASH)\n\n- Iron ores and concentrates, other than roasted iron pyrites (pyrite ash):\n\n- - Non-agglomerated\n\n- - Agglomerated\n\n2601.20.00\n- Roasted iron pyrites (pyrite ash)\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2602.00.00\nMANGANESE ORES AND CONCENTRATES, INCLUDING FERRUGINOUS MANGANESE ORES AND CONCENTRATES WITH A MANGANESE CONTENT OF 20% OR MORE BY WEIGHT, CALCULATED ON THE DRY PRODUCT\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2603.00.00\nCOPPER ORES AND CONCENTRATES\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2604.00.00\nNICKEL ORES AND CONCENTRATES\n\n| 0 | A | 0 | 0 | 0 | 0 | 0 | 0 |\n2605.00.00\nCOBALT ORES AND CONCENTRATES\n\n| 0 | A | 0 | 0 |\n\n| 2604.00.00 | MINERALES DE ALUMINIO Y SUS CONCENTRADOS | 0 | A | 0 | 0 | 0 | 0 | 0 | |\n| 2605.00.00 | MINERALES DE PLOMO Y SUS CONCENTRADOS | 0 | A | 0 | 0 | 0 | 0 | 0 | |\n\nNonetheless, in the printed version of La Gaceta No. 220 of November 14, 2012, Supplement No. 180 (which is only distributed to certain libraries), this Tribunal confirms that the page described as EU/CENTR-AM/Anexo I/es 544 was indeed duly published in that version.\n\nThus, in the printed version there would only be an error regarding the omission of publishing folio 1572 of the certified copy sent by the Assembly in Volume V.\n\nIn any case, it is clear that both the International Relations Committee and the consulted agencies and persons had at their disposal from the outset the integral and complete version of the Agreement under study.\n\nNow, this Court has repeatedly pointed out the importance of making known the bills that have been submitted for its consideration. However, it is no less true that the Chamber has interpreted the requirement for the publication of a bill in light of what is truly sought: its publicity. Thus, in judgment number 2002-8190 of 11:12 a.m. on August 23, 2002, it was stated:\n\n\"*V.- Publication of the bill approving the Treaty. Publication in La Gaceta of the bills discussed in the Legislative Assembly is an instrument that can foster popular participation in the adoption of major national decisions, in addition to constituting a guarantee of transparency in the law-making function. Although the Political Constitution omits any reference to this requirement, the Regulation of the Legislative Assembly does so in its articles 116, 117, and 121. Of these, 117 is the one containing the general rule, as follows:*\n\n*\"Article 117.- Filing Decrees*\n\n*In the Archives Department, filing decrees for matters shall be drafted and the original case file shall be formed, as well as the files for the members of the respective Committee. This Department shall send a copy of these matters to the Imprenta Nacional for publication in the Official Gazette.\"*\n\n*As can be appreciated, the Regulation of the Legislative Assembly expressly provides for the publication of the bills that the Legislative Assembly hears, as a self-regulation rule approved by the Assembly itself to guarantee the transparency of its actions when performing legislative functions. Publicity must be understood as an essential requirement of the legislative procedure, as it directly involves the democratic principle inherent to the creation of general norms. The foregoing does not imply that the publicity requirement can only be satisfied by the publication of the complete text of the bill, since eventually, upon the approval of a motion to dispense with formalities (moción para la dispensa de trámites), a summary of the bill's existence in the Official Gazette could be sufficient to give effective publicity to the bill.\"*\n\nFurthermore, in judgment number 2002-03458 of 3:54 p.m. on April 16, 2002, this Court stated the following:\n\n\"*V.- On the publication of the bill in the Official Gazette. On the other hand, it is worth discussing whether the approval of a motion to dispense with formalities (moción de dispensa de trámites) of publication and waiting period in Legislative Plenary session number 91 of November fourteenth, two thousand one, regarding the bill approving the \"International Convention for the Suppression of the Financing of Terrorism\", as well as five other initiatives (cf. folio 37 of legislative file number 14,556), is consistent with the constitutionality parameter. After the Chamber conducted a search through the editions of La Gaceta, it was determined that this bill, although not published in its entirety, was the subject of a notice reporting on the legislative agreement that dispensed with the referred formalities, and indicating the size and location of the legislative file, for anyone who wished to consult it. (La Gaceta number 230 of November thirty, two thousand one, page 7). In the Chamber's view, this action prevented a violation of essential rules of the legislative procedure. Publication in La Gaceta of the bills discussed in the Legislative Assembly is an instrument that can foster popular participation in the adoption of major national decisions, in addition to constituting a guarantee of transparency in the law-making function. Although the Political Constitution omits any reference to this requirement, the Regulation of the Legislative Assembly does so in its articles 116, 117, and 121. Of these, 117 is the one containing the general rule, as follows:*\n\n*\"Article 117.- Filing Decrees*\n\n*In the Archives Department, filing decrees for matters shall be drafted and the original case file shall be formed, as well as the files for the members of the respective Committee. This Department shall send a copy of these matters to the Imprenta Nacional for publication in the Official Gazette.\"*\n\n*As can be appreciated, the Regulation of the Legislative Assembly expressly provides for the publication of the bills that the Legislative Assembly hears. This requirement must be understood as essential, as it directly involves the democratic principle inherent to the legislative function. Notwithstanding the foregoing, in this case the Legislative Assembly has not harmed this procedural requirement, because although the Assembly agreed to relieve this bill of the formality of its publication, it decided that a notice regarding the existence of the bill in question be published in La Gaceta, inviting anyone interested in reading it to consult it at the Assembly, where it would be made available to the public. This Chamber is of the opinion that this latter determination allowed access, by the public, to legislative file 14,556, thus enabling popular participation in the discussion of the referred bill. It is not superfluous to highlight that, although the dispensation with formalities (dispensa de trámites) mentioned in article 35.5.d) of the Regulation of the Legislative Assembly must be understood in light of the more explicit rule of article 177 ibidem, in the sense that said dispensation is of the formality of review in committee, and not a generic dispensation of \"all\" legislative formalities, since those provided for in the Political Constitution and in the same Regulation, as minimum guarantees of respect for the democratic principle, cannot be dispensed with, not even by agreement of the Assembly itself. Obviously what happened in this case is that—as was already stated above—the \"integral\" publication of the bill in the Official Gazette was dispensed with; giving it publicity was not dispensed with, which would be unconstitutional, as it would constitute an excuse for non-compliance with an essential formality. Therefore, this Chamber considers that in the procedure followed for the discussion of this bill, no essential formalities have been violated, so it is appropriate to proceed to discuss the merits of the proposal.*\"\n\nAlways related to the issue of publicity, in judgment number 2008-018218 of 6:26 p.m. on December 10, 2008, it was indicated:\n\n\"*Having examined the documentation sent by the Executive Branch, the seal of the Ministry of Foreign Affairs and Worship is noted on the twenty-two pages of the copy of the Convention, from which a clear inaccuracy in the aforementioned certification can be inferred, which only refers to \"the foregoing seven photocopies.\" This situation requires the Chamber to determine the nature and scope of the error in said certification and its relevance from a constitutional point of view, based on the special circumstances of the specific case. Firstly, it is noted that the text of the Convention published on the official website of the Inter-American Tropical Tuna Commission (see http://www.iattc.org/PDFFiles2/Convencion_de_Antigua_Jun_2003.pdf), is identical to the text of it attached to the legislative file, which contains the same number of pages, twenty-two in total. This verifies that the certification in question contains a material defect, as instead of stating \"the foregoing seven photocopies\" it should have stated \"the foregoing twenty-two photocopies.\" Despite this error, it is clear that both within the Special Permanent Committee on the Environment and in the Plenary, the deputies had at their disposal the complete text of the Convention, which was published in its entirety in La Gaceta number 187 of September 29, 2006, for which reason not the slightest hint of doubt arose on the part of the legislators regarding its total content. Furthermore, no confusion was caused to the private organizations and public agencies consulted, given that the corresponding consultations specified the date of publication of said bill in the Official Gazette La Gaceta (see folios 38, 39, 47, 48, 49, 50, 54, 56, 58, 60, 62, 64, 66, 92 and 106 of the legislative file), which in turn rules out an injury to the principle of publicity. For these reasons, this Court concludes that at no time did the Executive Branch fail in its obligation to submit the complete documentation to the Legislative Assembly for the purpose of allowing it to clearly approve the perfectly defined object of what is being sought to elevate to a legal norm with a rank higher than law. Hence, in the specific case, the mistake committed constituted a mere material defect that cannot lead to the nullity of the legislative process and, therefore, does not require the implementation of any corrective mechanism. The foregoing does not prevent a call for attention so that in the future, this type of mistake be prevented, given the legal value of the certifications issued by the Ministry of Foreign Affairs and Worship, which must be entirely exact so that there is no doubt whatsoever about the absolute fidelity of the texts of the conventions submitted for approval in the Legislative Assembly.*\"\n\nConsequently, regarding the publication requirement in La Gaceta established by article 117 of the Regulation of the Legislative Assembly and the jurisprudence of the Chamber, it is inferred that the crux of the matter consists of analyzing, according to the specific case, to what extent a mistake in publication leads to a defect in publicity, from which the general public has a confused understanding of the content of a bill to be approved in the Legislative Assembly or their informed participation in its discussion is restricted. It is not, then, a matter of applying a rigid formalism, alien to the circumstances of the case, but of employing legal hermeneutics in accordance with the rules of sound criticism, so that the norms are interpreted in the way that best guarantees the achievement of the purpose or purposes they pursue.\n\nIn this case, unlike the subject of judgment number 2013-006969, there is no injury to the principle of publicity affecting its essential content, that is, that actually gives rise to a state of current and real confusion regarding the content of the legislative bill under discussion, in such a way that popular participation in the adoption of major national decisions is hindered. Precisely, the publicity of the procedure seeks to safeguard that the power to legislate resides in the people and that the deputies are only their representatives (article 105 of the Constitution), as well as the projection of parliamentary activity outward as a guarantee established in article 117 of the Political Constitution (see Judgment No. 2000-3220). In this context, it must be emphasized that from the amendment to article 9 of the Political Constitution (Law N° 8364 of July 1, 2003, published in La Gaceta N° 146 of July 31, 2003), the characteristic of \"participatory\" was introduced as a constitutive element of the Government of the Republic. This quality enhances at the constitutional level the fundamental purpose of publicity: to promote the intervention of the citizenry in the fundamental decisions of the State. If this purpose is not violated and it is noted that there has been no actual obstruction to popular participation, then an error in the publication cannot by itself constitute an essential defect in the legislative procedure. In the case at hand, contrary to what occurred in judgment number 2013-006969, the International Relations Committee always had the correct and complete version of the text of the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other\". Likewise, it is fully verifiable that the deputies of the Legislative Assembly at all times had the full text of the Agreement and based their discussions, motions, and the will expressed in their reports and votes on it. Likewise, the authorities and persons who were granted the respective hearings always had the complete text of the Agreement at their disposal. Thus, it is not seen that an injury to the essential content of the principle of publicity derived from the error in publication, so no defect of unconstitutionality has occurred. The case is different when not even within Parliament itself the full text of the bill to be approved has been available, or when it contains errors, or when the legislator itself has introduced important changes to the original version of a bill while it is being discussed in a committee (which in this case would have been, in any event, improper because article 361 of the Agreement does not permit unilateral reservations or interpretative declarations to it).\n\nAs a corollary to the foregoing, regarding the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other\" no essential defects in the legislative procedure are noted.\n\n**VIII.- On the merits of the bill.** Before making some observations on the merits of the bill \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" it must be emphasized that, according to the provisions of article 101 of the Law of Constitutional Jurisdiction, the opinion of this Chamber will only be binding insofar as it establishes the existence of unconstitutional formalities.\n\n**IX.-** The \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" far from being solely a typical Free Trade Agreement between the regions involved, was born under the figure of an \"Association Agreement\" to which, in addition to the commercial component, two more elements that complement and accompany it were added: \"Political Dialogue\" and \"Cooperation.\"\n\nUnder this understanding, this international instrument seeks to establish an interregional association between Central America and the European Union based on three fundamental pillars: **1) \"Political Dialogue\"**: it seeks to create a privileged political association between both regions based on common values and interests set forth in the Agreement (among them, disarmament, weapons of mass destruction, fight against terrorism, serious crimes of international concern, financing for development, migration, environment, citizen security, good governance in fiscal matters, among others); **2) \"Cooperation\"**: the Agreement is oriented to enable the necessary cooperation mechanisms within the areas of interest of the Parties (e.g., Democracy, Human Rights, and Good Governance; Justice, Freedom, and Security; Social Development and Social Cohesion; Migration; Environment, Natural Disasters, and Climate Change; Economic and Commercial Development; Regional Integration; Culture and Audiovisual Cooperation; Knowledge Society); **3) \"Trade\"**: as stated, this section constitutes a free trade agreement. This last commercial pillar has the following content: Titles I, XII, and XIII contain the initial and institutional provisions; Title II regulates matters related to Trade in Goods; Title III establishes Trade in Services and Establishment; Title IV refers to Current Payments and Capital Movements; Title V regulates matters related to Public Procurement; Title VI governs Intellectual Property; Title VII contains provisions related to Trade and Competition; Title VIII regulates matters concerning Trade and Sustainable Development; Title IX governs Regional Economic Integration; Titles X and XI refer to the topic of Dispute Settlement and Mediation; finally, Title XIV contains provisions related to Exceptions.\n\nIn addition to the three pillars described above, the text of the Association Agreement also enshrines several common rules or norms that apply to each of these three components. These rules are characteristic of all international treaties and are called in doctrine \"Rules of the Law of Treaties.\" In this agreement, these rules are set forth in the first and fifth parts of the Agreement.\n\nIn addition to the matter of the approval of the Association Agreement, the bill submitted for consultation contemplates the ratification by our country of an Amendment to the \"Convention on International Trade in Endangered Species of Wild Flora and Fauna\", since its approval is part of the political negotiation with the European Union and was a commitment derived from the Association Agreement (see explanatory memorandum of legislative file No. 18,563 and article 287.3 of the Association Agreement). Likewise, in bill No. 18,563 a Council of Land Border Posts is created and is endowed with the necessary financial resources, creating an exit tax for land ports and a tax on each customs export declaration filed at land border posts.\n\nFinally, in the bill, it is decided to entrust the Ministry of Foreign Trade with the country's representation before the international organization known as the \"Organisation for Economic Co-operation and Development (OECD)\".\n\nAfter clarifying the content of the bill in question, it is necessary to go into detail on each of the Parts that make up the Association Agreement.\n\n**Preamble:**\n\nThe motivations and general considerations in the Preamble of the Agreement form part of it, since although they do not generate direct legal obligations, they are useful for the purposes of interpreting the corresponding legal instrument.\n\nAmong such considerations, the following merits special reference:\n\n\"*RECOGNIZING the progress achieved in the Central American economic integration process, such as the ratification of the Framework Agreement for the Establishment of the Central American Customs Union and the Treaty on Investment and Trade in Services, as well as the implementation of a jurisdictional mechanism that guarantees compliance with regional economic legislation throughout the Central American region;*\"\n\nIn this regard, it should be noted that no express reference is made to the Central American Court of Justice, but rather an indeterminate reference to \"a jurisdictional mechanism\", so that the mere approval of the Agreement does not imply that Costa Rica recognizes the competence of said court.\n\n**Parts I and V of the Agreement:**\n\nAs is traditional in this type of international convention, Parts I and V of the Association Agreement contain common norms or rules that apply to each of the three pillars of the Agreement, and which are usually known as rules of the Law of Treaties.\n\nTitle I of Part I brings together the principles from which the Agreement must be interpreted and read; some of them are: the democratic principle, respect for fundamental rights, sustainable development, good governance, the Rule of Law, the rule of law, separation of Powers, transparency and accountability, efficiency, prevention and fight against corruption (Article 1). On the other hand, the main objectives of the Agreement are cited: to strengthen relations between the Parties, to develop a privileged political partnership, to improve bi-regional cooperation, to expand the trade relationship, to strengthen the progressive process of regional integration, good neighborly relations and the principle of peaceful settlement of disputes, to improve the level of good governance, to promote the increase of trade and investment (Article 2). \n\nIn Title II of this Part I, the topic of the institutional framework is covered, which is formed by the creation of an Association Council, an Association Committee, a Parliamentary Association Committee, a Joint Consultative Committee, and different subcommittees. The Association Council will be composed of representatives of the European Union Party and of each of the Republics of the Central American State Parties at the ministerial level, in accordance with the internal provisions of each State. The Presidency of said body will be exercised alternately by a representative of the European Union Party and another representative of Central America (Article 5). It is granted the power to issue its own regulations and its primary task is to supervise the fulfillment of the objectives of this Agreement and its application. For this purpose, a meeting at the ministerial level is planned every two years, with the possibility of meeting at the level of Heads of State when the Parties so agree (Article 4). Among its most relevant powers, we can cite the following:\n\n1. Examine any major issue arising under the framework of the Agreement, as well as any other bilateral, multilateral, or international issue of common interest. (Article 4.2)\n\n2. Examine the proposals and recommendations of the Parties aimed at improving the relations established under the framework of the Agreement. (Article 4.3)\n\n3. Formulate such recommendations as it may deem appropriate. (Article 6.3)\n\n4. Elaborate and adopt the \"Rules of Procedure\" that will govern the dispute settlement procedures set out in the Association Agreement. (Article 319)\n\n5. It shall adopt the Rules of Procedure and the Code of Conduct at its first session and may subsequently modify them. (Article 328)\n\n6. When dealing with trade-related issues, it may:\n\na) modify, in fulfillment of the objectives of Part IV of this Agreement:\n\ni) the lists of goods established in Annex I (Elimination of Customs Duties), in order to incorporate one or more goods into the tariff elimination program;\n\nii) the lists established in Annex I (Elimination of Customs Duties), in order to accelerate the tariff elimination;\n\niii) Appendices 1, 2, and 3 of Annex I (Elimination of Customs Duties);\n\niv) Appendices 1, 2, 2A, 3, 4, 5, and 6 of Annex II (Concerning the definition of the concept of \"originating products\" and methods of administrative cooperation);\n\nv) Annex XVI (Public procurement);\n\nvi) Annex XVIII (Protected geographical indications);\n\nvii) Annex XIX (List of products referred to in Article 306, paragraph 4);\n\nviii) Annex XXI (Subcommittees);\n\nb) issue interpretations of the provisions of Part IV of this Agreement; and\n\nc) take any other action in the exercise of its functions as agreed by the Parties. (Article 345)\n\nIt is important to highlight that the decisions adopted by said body will be binding for the Parties, and will be taken by common agreement; and in the case of the Central American countries, their consensus is required for the adoption of decisions and recommendations (Article 6). That is, the obligation is not imposed on a country to comply with a certain decision or recommendation if it has not previously given its express consent.\n\nTo fulfill such tasks, the Association Council will receive the collaboration of smaller units also created in the Association Agreement. Some of these units are: the Association Committee (which will also adopt its decisions in accordance with the conditions established in Articles 4 to 6); and the specific Subcommittees by subject matter (Articles 7 and 8). Likewise, a Parliamentary Association Committee is created, which will be constituted by members of the European Parliament and the Central American Parliament (PARLACEN). In the case of republics that are not part of PARLACEN (such as our country), it is provided that each State will designate its own representatives (Article 9). A Joint Consultative Committee is also established, which will have consultative functions and, as an important fact, must present to the Association Council the opinions of civil society organizations related to the application of the Agreement (Article 10). Lastly, reference is made to civil society, indicating that meetings of representatives of civil societies will be promoted to inform them about the application of the Agreement (Article 11). Due to the particular interest this topic generates, the participation of civil society will be developed later.\n\nOnce the proposed organizational structure is described, it is pertinent to refer specifically to the powers held by the Association Council formed for the Agreement under study and the similarity of attributions and differences it holds in relation to other instruments of the same nature that have been previously adopted by our country and also the subject of pronouncements by this Court. \n\nIn the case of the \"Free Trade Treaty between Costa Rica and the Caribbean Community\" approved by Ley 8455, the creation of a Joint Council had been provided with powers almost identical to those also granted in the Free Trade Treaty between Central America and Chile approved by Ley 8055, and very similar to those under study, which consisted of:\n\n\"**…** *this Joint Council is responsible for ensuring the fulfillment and correct application of the provisions thereof, for which it will issue recommendations; it may evaluate the results achieved in its application; resolve disputes that arise regarding its interpretation or application; supervise the work of the established or created committees and hear any other matter that could affect its operation. This Council, states Article I.06, may modify, in the interest of fulfilling the objectives of the Treaty: a) the list of goods of a party contained in Annex III.04.2 (Tariff Elimination) with the purpose of incorporating one or more excluded goods into the Tariff Elimination Program; b) the timeframes established in Annex III.04.02 (Tariff Elimination) in order to accelerate the tariff elimination; c) the specific rules of origin of Annex IV.03; d) the uniform regulations of the Customs Procedures*.\"\n\nIn a similar sense, in the Free Trade Treaty between the Dominican Republic, Central America and the United States approved by Costa Rica according to Ley 8622, the Free Trade Commission has the following powers:\n\n\"*Article 19.1: The Free Trade Commission*\n\n*1. The Parties establish the Free Trade Commission, made up of the representatives of each Party at the Ministerial level, referred to in Annex 19.1, or by the persons they designate.*\n\n*2. The Commission shall:*\n\n*(a) supervise the execution of the Treaty;*\n\n*(b) supervise the further development of the Treaty;*\n\n*(c) seek to resolve disputes that could arise regarding the interpretation or application of this Treaty;*\n\n*(d) supervise the work of all committees and working groups established in accordance with this Treaty; and*\n\n*(e) hear any other matter that could affect the operation of the Treaty.*\n\n*3. The Commission may:*\n\n*(a) establish and delegate responsibilities to committees and working groups;*\n\n*(b) modify in compliance with the objectives of this Treaty:*\n\n*(i) the tariff elimination schedules subject to Annex 3.3 (Tariff Elimination), in order to accelerate the tariff reduction;*\n\n*(ii) the rules of origin established in Annex 4.1 (Specific Rules of Origin);*\n\n*(iii) the Common Guidelines referred to in Article 4.21 (Common Guidelines); and*\n\n*(iv) Annexes 9.1.2(b)(i), 9.1.2(b)(ii) and 9.1.2(b)(iii) (Public Procurement);*\n\n*(c) issue interpretations on the provisions of this Treaty;*\n\n*(d) seek the advice of non-governmental persons or groups; and*\n\n*(e) adopt any other action for the exercise of its functions as agreed by the Parties. 19-2*\n\n*4. Each Party shall implement, in accordance with its applicable legal procedures, any modification pursuant to subparagraph 3(b) within the period agreed upon by the Parties.*\n\n*5. The Commission shall establish its rules and procedures. All its decisions shall be taken by consensus, unless the Commission decides otherwise.*\n\n*6. The Commission shall meet at least once a year in ordinary session, unless the Commission decides otherwise. The ordinary sessions of the Commission shall be chaired successively by each of the Parties.*\n\n*Article 19.2: Free Trade Treaty Coordinators*\n\n*1. Each Party shall designate a Free Trade Treaty Coordinator, in accordance with the provisions of Annex 19.2.*\n\n*2. The coordinators shall work jointly in developing agendas and other preparations for the Commission meetings and shall provide appropriate follow-up to the Commission's decisions…\"*\n\nSo the Association Council envisaged to administer the agreements signed in this negotiation is not very different from those previously approved by our country, which even has less involvement in dispute settlement than the bodies cited above.\n\nIn addition to the above, this Court, referring to the scope of this type of authority and the binding nature of its decisions for the country, specifically stated:\n\n“*On this point, it is clear from the reading of the Treaty that the Free Trade Commission is a collegiate body composed of representatives of each Party at the ministerial level or by the persons each designates, and its function is to supervise the execution of the treaty, supervise its further development, resolve disputes that may arise from the interpretation or application of the treaty, supervise the work of the established committees and working groups, and address any other matter that could affect the functioning of the agreement. Its attributions also include issuing interpretations on the provisions of the treaty, but not modifying its content as the consulting deputies indicate. It is clear that such an attribution was not granted in the Treaty as is evident from Article 19.1, so this Chamber cannot conclude anything beyond what the text of the commercial agreement establishes. Furthermore, even though the consultants consider that said Commission assumes legislative and regulatory powers, this Chamber has previously referred to the legal nature of the rules issued by this type of Commission, understanding that they are protocols of lesser rank (protocolos de menor rango) in accordance with the provisions of Article 121, paragraph 4) of the Political Constitution. Reaffirming the above, the Free Trade Agreement establishes in Annex 19.1.4 that: “In the case of Costa Rica, the decisions of the Commission pursuant to Article 19.2.3(b) shall be equivalent to the instrument referred to in Article 121.4, third paragraph (protocol of lesser rank), of the Political Constitution of the Republic of Costa Rica.” Taking that nature into account, it cannot be considered that these are unconstitutional powers, and the Chamber so warned in judgment 2000-8404 of ten o'clock on September twenty-second, two thousand, in which it indicated:*\n\n***V.- On the Free Trade Commission:** In Article 18.01 of the Treaty, a Free Trade Commission is established that will be responsible for ensuring the fulfillment and correct application of the provisions of this Treaty; evaluating the results achieved in the application of the Treaty; resolving disputes that arise regarding the interpretation or application of the Treaty; supervising the work of the committees established or created pursuant to the Treaty; and addressing any other matter that could affect the functioning of that Treaty. This Commission, the article states, may modify, in pursuit of fulfilling the objectives of the Treaty: a) the list of goods of a party contained in Annex 3.04 (Tariff Elimination Schedule) in order to incorporate one or more goods excluded in the Tariff Elimination Schedule; b) the time periods established in Annex 3.04 (Tariff Elimination Schedule) in order to accelerate tariff elimination; c) the specific rules of origin of Annex 4.03; d) the uniform regulations; e) Annex 9.01 of service sectors or sub-sectors in order to incorporate new service sectors or sub-sectors; f) Annexes I, II, and III of Chapter 11 (Cross-Border Trade in Services) and the list of entities of a Party contained in Annex 16.01 (Entities) in order to incorporate one or more entities into the scope of application of Chapter 16 (Public Procurement). The official of the Commission, in the specific case of Costa Rica, is the Minister of Foreign Trade or his successor. Now, in Annex 18.01 (4), it is expressly established that for the case of Costa Rica, the agreements reached by the Parties shall be equivalent to the instrument referred to in Article 121.4, third paragraph of the Political Constitution; an instrument that has been denominated \"Protocol of Lesser Rank\" (Protocolo de Menor Rango). On this, the Chamber has stated:*\n\n*\"Protocols of lesser rank are those that, without adding substantial commitments or limitations to the activity of the states, develop and even modify merely procedural rules that do not affect the substance of the treaty. A typical case of protocols of lesser rank are modifications to compliance deadlines and other similar measures, provided that those modifications are, as stated, foreseen in the main treaty\" (Judgment No.03388-98 of sixteen hours thirty-nine minutes on May twenty-sixth, nineteen hundred and ninety-eight).*\n\n*In relation to the specific case, the Chamber considers that both the Free Trade Commission being created in the Treaty under study, and the powers granted to it therein, are not unconstitutional insofar as they can be considered as protocols of lesser rank in the terms indicated supra, or, and to the extent that, through the exercise of those powers, substantial and fundamental decisions are not being made that must necessarily be analyzed by the Legislative Assembly in accordance with the constitutional powers held by this Branch of the Republic. From this perspective, it is not unconstitutional for the representative of Costa Rica to participate and carry the voice of the National Government on matters related to the Treaty, as long as it does not commit the country to decisions that necessarily require legislative approval and, of course, subsequent constitutional review by the Constitutional Chamber. (Judgment No. 2000-8404)*\n\n The foregoing precedent is fully applicable to the specific case, since the rule analyzed is very similar to the one discussed here, which leads the Chamber to conclude that the functions or attributions established for the Free Trade Commission in the Free Trade Agreement are not in themselves unconstitutional, as it cannot be deduced from the articles of the Treaty that the intention is for said Commission to alter its provisions, but rather only to interpret them. Furthermore, there is always the guarantee that the representative of Costa Rica could not in any way commit our country to any matter requiring legislative approval.\n\nHowever, an aspect that must be carefully analyzed is the accusation by the Ombudsman's Office that said Commission can impose obligations on Costa Rica even against its will, as it is a supranational body. On this particular, it must be borne in mind that in light of the provisions of numeral 19.1.5 of the Free Trade Agreement, the decisions adopted by said Commission are taken by consensus, unless the same decides otherwise. While the Treaty does not clarify what is understood by \"consensus,\" the preamble itself expressly recognizes the Marrakesh Agreement establishing the World Trade Organization, which does clarify the meaning of said concept. In light of the provisions of Article IX, paragraph 1, footnote 1, of the Marrakesh Agreement \"the body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if **no** Member present at the meeting when the decision is taken, formally objects to the proposed decision.\" This means that in the commercial sphere established by the Free Trade Agreement and the WTO, the consent of all Parties present is required to adopt a decision, that is, there is a kind of veto no matter how small and weak a country may be if it opposes what others decide against its will. For practical purposes, this means that no decision affecting Costa Rica can be adopted if its representative objects, whereby the State is not ceding its sovereignty. It is for this reason that said Commission is not considered a supranational body either, as it cannot impose obligations beyond the will of the States either in the treaty \"administration\" process, or when it intervenes in the State-to-State dispute resolution mechanism, considering that in this latter case it merely issues recommendations. On a similar matter, through judgment 1079-93 of fourteen hours forty-eight minutes on March second, nineteen hundred and ninety-three, the Chamber indicated:*\n\n*\"B) The foregoing obliges us to recognize the expression 'community legal order' (ordenamiento comunitario), although not felicitous, only makes sense, in the context of that subparagraph, if 'community' is understood to mean that legislation which, although created through typical sources of the Law of Nations, such as treaties, **in reality has a 'supranational' character, in that it is capable of imposing on the States Parties obligations, duties, burdens, or limitations beyond those agreed upon and even against their will** **for example, through decisions adopted by a majority**; **this being completely different from merely international orders, in which States commit only to what they commit to by treaty, or, if this also creates some type of international body, the decisions in that body are either not binding, or if they are binding, they must be taken by unanimity, that is, with the express acceptance of the Costa Rican State, through its legitimate representatives competent for that purpose**. It is true that the inclusion of the concept 'community legal order' in said constitutional norm was made by the Legislative Assembly acting as a constituent power (by Law Nº 4123 of May 30, 1968), having in mind the process of integration or the Central American Common Market, but it would be contradictory and, therefore, unconstitutional to deduce from this that the Constitution imposes an aggravated procedure for the approval of the instruments of that process, desired by Costa Rica and closer and more natural as it occurs within the geopolitical and historical sphere of the Central American Grand Homeland, than in other more distant and less intense scenarios where the powers of the Costa Rican State are also assigned or transferred to an extra-national order.\" (The bold is not part of the original)*\n\nFor the foregoing, and taking into consideration that the decisions of the Commission cannot be imposed beyond the will of the States because they are adopted by consensus, this Chamber finds no unconstitutionality whatsoever regarding this aspect.\n\nEven though the consulting deputies claim that the decisions of the Commission are not necessarily adopted by consensus since Article 19.1.5 establishes that said body may agree on another form of voting, neither does the Chamber consider this to be unconstitutional. It is clear that any decision of the Commission that seeks to vary the form of voting must be adopted by consensus, so the voting mechanism could not be varied if the representative of our country does not agree, whereby he obviously maintains the power to guarantee that no decision is imposed on Costa Rica against its interests. That said, a warning is made that said representative could not authorize a change in the form of voting if this would allow a decision contrary to the will of our State to be forced, and provided that it does not commit the country to decisions that necessarily require legislative approval. Therefore, the issue in question then lies in the obligations and controls that the State imposes on its representative. Likewise, the argument of the consultants is not acceptable that there is no guarantee that the decisions made by the Free Trade Commission will be in accordance with the Constitution, for precisely therein lies the importance of the function performed by our representative, who could not at any time commit our country beyond what our Fundamental Charter permits. In any case, if the Constitutional Jurisdiction Law was not included as a \"non-conforming measure,\" it does not mean that the review by this Chamber provided for in the Political Constitution (Articles 10 and 48) has been repealed, but rather, on the contrary, it was not considered incompatible with the Treaty, and therefore its inclusion was not necessary. The consultants must be clear, as will be seen throughout this judgment, that the list of non-conforming measures only includes that national legislation which, despite being contrary to the provisions of the Treaty, one wishes to keep in force. This does not mean that what is not included therein is understood to be repealed.” (Judgment No. 2007-9469)\n\nPursuant to the foregoing, the International Agreement under study presents no defect of unconstitutionality whatsoever, since, as has been demonstrated, the Association Council does not have the capacity to impose on the States Parties obligations, duties, burdens, or limitations beyond those agreed upon and never against their will, given that this requires consensus, that is, the express acceptance of the Costa Rican State through its legitimate representatives competent for that purpose, besides the fact that its decisions revolve around the administration and implementation of the negotiated commercial matter.\n\nWith regard to the final provisions, Part V of the Agreement clarifies issues such as the definition of the Parties (where what draws attention is the enumeration of the cases in which the countries of Central America must act jointly (conjuntamente) (in decision-making through the bodies provided for in Title II (Institutional Framework) of Part I of this Agreement, in the implementation of the obligations provided for in Title IX (Regional Economic Integration) of Part IV of this Agreement, in the implementation of the obligation to establish a Central American Regulation on Competition and a competition authority, and in the implementation of the obligation to establish a single point of access at the regional level, in accordance with Article 212, paragraph 2, of Title V (Public Procurement) of Part IV of this Agreement); otherwise, for any other matter, the Central American countries shall assume obligations and act individually – Article 352 –), entry into force in which it is explained that the rule is that the Trade Agreement (Part IV) may govern independently between the European Union and each Central American country that ratifies it, but not the entirety of the Association Agreement which does require accession and ratification by all Parties (Article 353), its indefinite duration and the possibility of being denounced by any country at any time, ceasing to be in effect six months later (Article 354), compliance with obligations (Article 355), rights and obligations (Article 356), exceptions (Article 357), an evolutionary clause referring to the possibility of expanding or supplementing the Agreement through the conclusion of other agreements on specific activities (Article 358), accession of new members and their particular rules (Article 359), territorial application, expressly clarifying that for the case of Central America, said Agreement would apply in *“the territories of the Republics of the CA Party, in accordance with their respective national laws and International Law”* (Article 360), and the impossibility of formulating unilateral reservations or interpretative declarations, which responds to the logic of the multilateral nature of the Agreement (Article 361). Consequently, the concept of territory, in the terms of Article 6 of the Political Constitution, is respected. Finally, the rule of the integrality of the Agreement is established (that is, that the annexes, appendices, notes, footnotes, among others, form part of the Agreement), as well as that relating to the authentic languages (all the official languages of the Parties).\n\nThis Constitutional Court, after reading these first two sections, does not note any evident and manifest conflicts of unconstitutionality.\n\n**Part II of the Agreement:**\n\nThis Part II of the Agreement corresponds to the first fundamental axis of the international negotiation achieved. It contains the rules necessary to give content to the \"Political Dialogue\" agreed upon by both regions. In principle, it is a treaty that replaces the previous *“Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, of the other part”*, signed in the city of Rome on December 15, 2003, and ratified by Costa Rica through Law number 8919 of December 16, 2010.\n\nIn this section of the Agreement, the objectives that this political dialogue will have are synthesized. The establishment of a privileged political partnership is underscored, in which the exchange of opinions, positions, and information can be fostered, as well as the discussion of matters of mutual interest (Articles 12 and 13). In numeral 13, a list of topics is defined on which it is intended to achieve a common basis between both regions; however, it is not exhaustive, as it is permitted to add any other topic as an area of political dialogue. The political commitments acquired by our country in this Part II on \"Political Dialogue\" include rules on matters in which Costa Rica has shown a very advanced level of commitment, in some cases responding to areas whose protection has been promoted by the jurisprudence of this Chamber. For example, on the topic of Disarmament (Article 14), there are several international instruments cited in the Association Agreement that our country had previously signed and ratified, among them: the *“Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction”* (approved by Law Nº 7859), and the *“Convention on Certain Conventional Weapons and its Protocols”* (approved through Law Nº 7820).\n\nIn that same vein, regarding the topic of Weapons of Mass Destruction (Article 15) or nuclear weapons, Costa Rica is already a Party to the most relevant international instruments that have been drawn up (e.g., the *“Comprehensive Nuclear-Test-Ban Treaty and its Protocol”*, approved by Law Nº 8094; or the *“Treaty for the Prohibition of Nuclear Weapons in Latin America”*, approved by Law Nº 4369).\n\nIn the matter of the Fight against Terrorism (Article 16), our country also complies with the rules set forth in the Association Agreement, given that it has signed various conventions at the international level on this topic (e.g., the *“Inter-American Convention against Terrorism”*, approved by Law N° 8446, the *“International Convention for the Suppression of the Financing of Terrorism”*, approved by Law N° 8257, among others).\n\nOn the other hand, numeral 17 of the Association Agreement reaffirms that the most serious crimes of concern to the international community must not go unpunished, and grants a fundamental role to the functioning of the International Criminal Court, to which Costa Rica acceded through the approval of the Rome Statute of the International Criminal Court (Law N° 8083).\n\nIn the subsequent Articles 19, 20, 21, and 22 of the Association Agreement, general rules are recognized for application to topics such as: migration, environment (an area in which Costa Rica has demonstrated serious international commitment, approving a multitude of agreements), citizen security, and good governance in fiscal matters. Finally, the commitment acquired regarding the creation of a Common Economic and Financial Credit Fund has even more specific scopes, because its postulates establish the need for a common mechanism that includes the intervention, for example, of the European Investment Bank, the Latin America Investment Facility, and other technical assistance, all in order to reduce poverty and support development in Central America.\n\nAs with Parts I and V, the Chamber does not consider that the conventional rules set forth in this \"Political Dialogue\" section directly and clearly threaten the content of the Political Constitution.\n\n**Part III of the Agreement:**\n\nIn the first place, the \"Cooperation\" Part sets forth the objectives and general principles of cooperation between both regions, stated in a generic manner. It is clarified that such cooperation would materialize in the contribution of resources, mechanisms, tools, and procedures (Article 24). Additionally, it is explained that all entities involved in the cooperation process are subject to transparent management of the resources provided to them, as well as to the duty of accountability (Article 26). Part III details a non-exhaustive list of the priority areas of interest in which both regions would apply cooperation practices (areas classified in Titles I through IX); however, it is recalled that if the Parties so decide, any other area or activity in keeping with the spirit of the Association Agreement may be included in the cooperation category (Article 27).\n\nIn Title I of this Part III, an attempt is made to establish the main scopes of intraregional cooperation in the sectors of Democracy, Human Rights, and Good Governance. In these areas, fundamental aspects such as the universality, indivisibility, and interdependence of human rights are reiterated; likewise, it is agreed that cooperation in this field will aim to improve and modernize public management, as well as to support a comprehensive peace policy that includes the prevention and peaceful resolution of conflicts.\n\nRegarding Title II, the Association Agreement took care to regulate interregional cooperation concerning Justice, Freedom, and Security. Thus, it discusses collaboration on the topic of personal data protection and the free circulation of these between the Parties, provided that the regulations established in the domestic legislation of each country are respected.\n\nAlso in the reduction of the supply and demand of illicit drugs, both from a repressive and preventive perspective. The same applies to the issue of money laundering (including the financing of terrorism), organized crime, and citizen security (exchanging best practices), the fight against corruption in the public and private sectors due to the serious threat it constitutes to the internal institutions of each country, preventing (among other issues) bribery in international transactions and following up on policies executed at the local, regional, and international levels. In turn, cooperation is extended to prevent and combat the illicit trafficking of small arms.\n\nWith respect to Title III, it must be stated that it was the section designated to regulate cooperation in the field of Development and Social Cohesion. Regarding this subject, the interest of both regions in cooperating to combat important social problems such as poverty, social inequality, and exclusion can be highlighted, with the aim of a better distribution of wealth and the establishment of employment policies oriented toward decent work for all persons (article 41). Regarding education and training (article 43), the Parties agreed to cooperate to achieve equitable access to education, as well as to improve its quality. In public health (article 44), several pathologies of special attention for cooperation are listed, among other issues. Cooperation will also be sought in the protection and promotion of the fundamental rights of indigenous peoples (pueblos indígenas), as has been fostered by various international instruments created around this population (article 45). The Association Agreement is also interested in cooperating in favor of socially vulnerable groups and strengthening the gender perspective and equality between men and women in each of the internally relevant areas, without neglecting matters related to youth (articles 46, 47, and 48).\n\nIn Title IV, related to the topic of Migration, the provision establishing cooperation for the return, in humane conditions, of persons who do not have a legal residence permit draws attention (article 49). In that sense, it was agreed that the Central American republics committed to “readmit, upon request and without any formalities,” all their nationals with irregular migratory status in the territory of any member of the European Union (article 49.2.a); the same readmission applies to nationals of an EU country who are irregularly in Central America (article 49.2.b). However, in accordance with article 49.4 of the Association Agreement, such readmission shall be regulated through a multilateral agreement (between the Parties), in which the obligations of each State in this matter would be regulated. In line with what was explained by the Departamento de Servicios Técnicos, the Dirección General de Migración y Extranjería of our country (in response to a query on draft law No. 18,563), issued a favorable opinion regarding this readmission and the regulations contained in the Association Agreement, indicating that it “does not present conflicts with current migration legislation.”\n\nIn another vein, Title V of this Part III of the Agreement refers to the Environment, Natural Disasters, and Climate Change, defining which environmental areas would be covered by interregional cooperation (article 50). Similarly, it seeks to reduce the vulnerability of the Central American region to natural disasters (article 51).\n\nTitle VI applies to cooperation in the field of Economic and Commercial Development. Specifically, this section is responsible for regulating the topic of cooperation and technical assistance in matters such as competition policy and its promotion (article 52), customs and trade facilitation (articles 53 and 54), intellectual property and technology transfer (article 55), trade in services and electronic commerce (article 56), public procurement (article 58), sustainable fisheries and aquaculture (article 59), access to markets for artisanal goods and their preservation (article 60), facilitating trade in organic products (article 61), food safety, sanitary and phytosanitary measures as well as animal welfare (article 62), trade and sustainable development, supporting environmental protection and decent working conditions (article 63), modernization and restructuring of Central American industry (article 64), energy and renewable energies, their savings and environmental impact (article 65), mining taking into account internal legislation and sustainable development (article 66), fair and sustainable tourism that includes the protection and promotion of cultural heritage and natural resources, all with the participation of local communities, promoting rural, community, and ecological tourism (article 67), modernization and restructuring of transport in all its modalities, including border posts, facilitating the movement of people and goods (article 68), support for micro, small, and medium-sized enterprises, so that they can participate in the markets for goods and services locally and internationally (article 70), and access to microcredit and microfinance (article 71).\n\nIn relation to Title VII, it can be stated that it is intended to regulate cooperation on Regional Integration, strengthening this process in the Central American sphere, especially in the application of its common market, development of its common institutions, and participation of civil society through consultation and awareness campaigns (article 72).\n\nFor its part, Title VIII refers to Audiovisual and Cultural Cooperation. In that sense, it is highlighted that the Parties committed to promoting the circulation of cultural activities, goods, and services, and of artists and cultural professionals (article 74). It also includes the promotion of cultural diversity, including that of indigenous peoples (pueblos indígenas) and the cultural practices of other groups, incorporating education in native languages. In the audiovisual area, cooperation in media, such as radio and press, is mentioned. Finally, it is clarified that a Cultural Cooperation Protocol is annexed in the final provisions, which is also of relevance for the interpretation of this Title.\n\nFinal Title IX of this Part III is related to the Knowledge Society. This section attempts to enshrine cooperation between both regions regarding information and communication technologies, seeking to reduce the digital divide and ensure equitable and inclusive access (article 75). It also focuses on topics such as: digital government, electronic commerce, digital signatures, telework, among others. Likewise, cooperation would be directed at the scientific and technological sector, as well as establishing joint research actions (article 76). The promotion of nuclear science and technology for medical applications in areas such as health is affirmed, in particular radiology and nuclear medicine for radiodiagnosis and radiotherapy treatment, as well as other areas that the Parties establish by mutual agreement. The topic of training, scholarships, and exchanges is also emphasized.\n\nHaving analyzed each of the Titles that make up this Part III of the Association Agreement, the Chamber concludes that – in general terms – no evident and manifest unconstitutionalities were found regarding the substance of its rules and texts.\n\nPart IV of the Agreement:\n\nAs has been explained, Part IV of the Association Agreement constitutes, properly, the Free Trade Agreement between Central America and the European Union.\n\nIn accordance with articles 353.2 and 353.4 of the Agreement, unlike the other parts of the Association Agreement that will enter into force when the Parties of both regions have notified the completion of their internal procedures, this Part IV may enter into force for each Central American country that ratifies it, independently of the others, once it has been approved by the European Union.\n\nIn general, this commercial section follows the traditional structure of World Trade Organization Agreements, developing in 14 Titles the areas of trade in goods (Title II), trade in services and electronic commerce (Title III), and includes provisions on common themes: investment protection relating to financial flows (Title IV), public procurement (Title V), protection of intellectual property (Title VI), and mechanisms for dispute settlement (Title X).\n\nTitle I and XIV contain the general provisions applicable to the entire Commercial Agreement, and set forth the basic objective of the Parties (establishment of a free trade zone), the technical definitions, and the general exceptions that commonly apply in this type of treaty (Title XIV), following the rules of the WTO GATT Agreement, agreements approved by Costa Rica at the time of its incorporation into the World Trade Organization (Ley Nº 7475 of December 20, 1994).\n\nThese are, therefore, economic policy objectives that may or may not be shared, but whose definition in any case corresponds to a criterion of political opportunity under the purview of the Legislative and Executive Branches, not a jurisdictional criterion. The constitutional review conducted by the Sala Constitucional cannot substitute for said Branches but must be limited to verifying that the constitutional order is not violated, all in respect of the principle of self-restraint of the constitutional judge.\n\nRegarding the rules of Titles XII and XIII (of Transparency and Administrative Procedures), they are common provisions in the creation of institutional mechanisms for the implementation of the Agreement, whether with the obligation to publicize internal administrative procedures themselves, to provide the possibility in the legal system to challenge, administratively or judicially, the acts of the bodies responsible for implementing the Agreement (customs and health authorities, among others), or to maintain a contact point for fluid communication between the Parties. Properly, Title XIII is limited to distributing competencies and functions within the different bodies that are created, to administer and implement the Agreement itself.\n\nThis Commercial Agreement includes some novel topics, such as the regulations relating to the Title called “Trade and Sustainable Development” (Title VIII), in addition to the commitments to regional economic integration (Title IX).\n\nIn general, all these topics and commitments implied by Commercial Agreements of this type have already been assumed by the country in previous treaties. For this reason, and given the eminently technical nature of the contents of the Commercial Agreement, which in principle respond to discretionary commercial policy criteria, the Chamber deems it necessary to recall some jurisprudence issued by this constitutional jurisdiction in cases analogous to the present one, in which it was explained that: “(…) However, from the point that interests us now, this means that the State, or more properly, the bodies that have strictly political and managerial competencies, must always act in order to stimulate production and the most adequate distribution of wealth. It must be understood, therefore, that the Executive Branch has negotiated this Treaty, having those constitutional objectives as a guide. And it must also be understood that the Legislative Branch, when considering the substance of said instrument, will act in accordance with the same objectives. That is why we can conclude, in principle, that the advantages or disadvantages that the Treaty as such, or some of its provisions, debated and debatable, may have for some sector do not necessarily entail an aspect of constitutionality, in the sense that the Chamber must pronounce, as they lie at the level of mere convenience or opportunity. For example, some point out that despite the benefit of this type of commercial instrument, a country would not derive immediate or short-term advantages if the old model (of import substitution, of subsidies) and the new model of commercial opening coincide in it. (…) In any event, the Chamber warns that those aspects revolve around the policies behind the philosophy of the Treaty, but do not have the constitutional connotation to which the Chamber must circumscribe its opinion\" (see rulings number 07005-94 of 09:21 hours on December 2, 1994, and 9469-2007 of 10:00 hours on July 3, 2007, among others). Consequently, in accordance with the various pronouncements that this Chamber has issued on the Free Trade Agreements already in force in our country, it is clear that, in general terms, the commercial and technical clauses contained therein obey the commercial policy that the Executive Branch had at the time of signing the international instrument. Likewise, it is also observed that many of the norms contained in this Commercial Agreement basically limit themselves to reaffirming the rights and obligations of the Parties, already previously contained in other international conventions ratified by Costa Rica (e.g., in the area of Intellectual Property, article 233 of the Agreement lists several international instruments that the Parties must comply with, all of which have already been ratified by our country: the Rome Convention (Ley Nº 4727), the Berne Convention (Ley Nº 6083), and the WIPO Treaties on Copyright (WCT) (Ley Nº 7968) and on Performances and Phonograms (WPPT) (Ley Nº 7967)).\n\nThus, this Court will limit itself to the study of certain novel aspects or those it considers relevant from a constitutional perspective.\n\nThe International Agreement under study, in relation to Title V of Part IV, establishes as its main objective the effective, reciprocal, and gradual opening of their respective procurement markets, supported by transparent, competitive, and open procurement that contributes to sustainable development. Precisely for this reason, article 211 establishes, as has been provided in previous treaties of the same nature, the need for the State Parties to give treatment no less favorable than that granted by the Party, as well as the duty to manage procurement in a transparent and impartial manner, seeking to avoid conflicts of interest and corrupt practices. Due to the foregoing, the agreement contemplates different forms of administrative procurement, similar to those contemplated in our legal system (called in this case open tendering (licitación abierta), selective tendering (licitación selectiva), and restricted tendering (licitación restringida)), which aims to guarantee minimum principles of participation and equality that protect the companies who eventually participate in the State Parties. The foregoing is reasonable based on the fact that not every State Party has such guarantees contemplated in its legal system, as ours does, even at the constitutional level, in accordance with the provisions of article 182 of the Political Constitution:\n\n“Article 182.-\n\nContracts for the execution of public works entered into by the Branches of the State, the Municipalities, and the autonomous institutions, purchases made with funds of those entities, and the sales or leases of goods belonging to them, shall be made through public tendering (licitación), in accordance with the law regarding their respective amount.”\n\nIn particular, the text of the convention under study provides the following definitions in article 209.2:\n\n“…f) “Restricted tendering” (licitación restringida) means a procurement method whereby a procuring entity contacts a supplier or suppliers of its choice;…\n\n…k) “open tendering” (licitación abierta) means a procurement method whereby all interested suppliers may submit a tender ;…\n\n…n) “selective tendering” (licitación selectiva) means a procurement method whereby a procuring entity only invites qualified or registered suppliers to tender;…”\n\nLikewise, this Convention regulates the need for publication of information on procurement processes in a timely, complete, and transparent manner (see articles 212, 217, and 223) and seeks due access under equal conditions for participation in procurement processes, stating that for the selection of the tenderer, their suitability must be taken into consideration regarding financial, commercial, and technical abilities, without giving privileged treatment to those who have previously participated, valuing the offer solely based on territory (article 214). In accordance with said objectives, article 220 stipulates that provided that procurement procedures are not used as a means to avoid competition or to protect national suppliers, a procuring entity may award contracts through direct procurement or other equivalent procurement procedures under certain circumstances specified therein. The foregoing is precisely a guarantee that a State Party does not indiscriminately justify the use of a direct procurement mechanism to the detriment of the other State Parties, thereby harming the principle of good faith governing the negotiation; thus, far from diminishing the controls already existing in our legal system for carrying out administrative procurement, minimum conditions are established, at least regarding the object to be procured, for resorting to this direct procurement mechanism. All of the foregoing is fully consistent with the principles governing administrative procurement in our country and in no way affects the internal public procurement regime, as there is no agreement to diminish or harm the controls and principles of administrative procurement observed in our country; moreover, it intends to guarantee that these are carried out with all the guarantees of the case. Likewise, article 225 provides that each Party shall establish or maintain administrative or judicial review procedures that allow control of administrative decisions affecting procurement, so that said processes must be timely, effective, transparent, and non-discriminatory, and it refers to our own jurisdiction for the resolution of conflicts of this nature. On the other hand, the Chamber, in rulings No. 2007-9469 and No. 2008-12590, has reiterated, before conditions agreed upon like those under study, that the control exercised by the Contraloría General de la República equally prevails, as a guarantee not only for nationals but also for nationals of the State Parties:\n\n“… the Treaty under study leaves the designation of their competent administrative or judicial authority in this matter to the discretion of each Party, imposing as the sole requirement that it be an impartial body. It is for this reason that in the case of Costa Rica, it must be understood in light of our country's internal regulations that the Contraloría General de la República retains all its attributes of control and oversight in matters of public procurement, and if it is not expressly mentioned in the Treaty, it is not because its exclusion is intended, but because such designation will depend on the regulations of each Party. The fact that the Organic Law of the Contraloría was not included in the list of non-conforming measures does not mean that the oversight power of said body is being excluded. On the contrary, it means that this control was not considered incompatible with the Treaty in light of the provisions of article 9.15, and therefore it did not warrant its inclusion as a non-conforming measure.\n\nThus, because there is no provision to the contrary in the treaty, the Comptroller General of the Republic retains all of its powers in this matter, and consequently, it can even ensure that the exceptional mechanisms to “open bidding” are not conducive to abuse and identify when one of those cases actually exists.\n\nOn the other hand, the Chamber verifies that although Article 214 of the Agreement, which refers to conditions for participation, states in point 4, second paragraph, that: “Each Party may adopt or maintain procedures to declare the ineligibility for participation in the Party’s procurements, either indefinitely or for a stated period of time, of suppliers that the Party has determined have engaged in illegal or fraudulent activities related to procurement”; this rule is not harmful to our legal system, despite establishing the possibility of imposing a sanction indefinitely—such as ineligibility—because the cited rule contemplates two scenarios that are divided by the conjunction “or,” which in this case has a disjunctive function, meaning that the State Party may choose to declare ineligibility indefinitely or for a stated period. Regarding our country, Article 40 of the Political Constitution prohibits the existence of perpetual sanctions, so when the corresponding procedures are regulated, the stated cause simply could not be subject to an indefinite sanction, but rather a specific duration, which is also consistent with the provisions of the international Agreement under review.\n\nOn the other hand, Title VII of this Part IV, called “Trade and Competition,” sets forth certain principles that would govern competition in commercial relations between each region (Article 278). In that sense, it was noted that the Parties recognized the importance of free and undistorted competition; furthermore, that anti-competitive practices can affect the proper functioning of markets and the benefits of trade liberalization. Following this, the Parties agreed on a list of practices that would be incompatible with the Agreement. However, they also included important clarifying or safeguard clauses such as the one contemplated in numeral 280: “Nothing in this Title shall prevent a Republic of the CA Party or a Member State of the European Union from designating or maintaining public undertakings, undertakings with special or exclusive rights, or monopolies according to their respective national legislation” (emphasis added). As is well known, Costa Rica already has normative regulations related to the subject of competition (Law on the Promotion of Competition and Effective Consumer Defense, Law No. 7472 of December 20, 1994); likewise, in recent years, the national market has been liberalized in certain specific sectors (e.g., the General Telecommunications Law, No. 8642, which imposes a competition regime in that area).\n\nIn Title VIII, related to “Trade and Sustainable Development,” a series of principles on labor and environmental standards are established, considering not only current but also future generations. The right of the Parties to regulate their own level of protection, in accordance with their respective Constitutions, is recognized (Article 285), but reaffirming the commitment to implement, in their legislation and practice, the ILO Conventions listed in Article 286 of the Agreement (Convention 138 on the Minimum Age for Admission to Employment (Law No. 5594), Convention 182 on the Prohibition of the Worst Forms of Child Labour and Immediate Action for Their Elimination (Law No. 8122), Convention 105 on the Abolition of Forced Labour (Law No. 2330), Convention 111 on Discrimination in Respect of Employment and Occupation (Law No. 2848), as well as Conventions 29: on Forced or Compulsory Labour, 100: on Equal Remuneration for Male and Female Workers for Work of Equal Value, 87: on Freedom of Association and Protection of the Right to Organise, and 98: on the Application of the Principles of the Right to Organise and to Bargain Collectively (all approved jointly by Law No. 2561)), as well as the multilateral environmental agreements to which they are party, listed in Article 287 of the Agreement (Montreal Protocol on Substances that Deplete the Ozone Layer (Law No. 7228), Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Law No. 7438), Stockholm Convention on Persistent Organic Pollutants (Law No. 8538), Convention on International Trade in Endangered Species of Wild Flora and Fauna “CITES” (Law No. 5605), Convention on Biological Diversity (Law No. 7416), Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Law No. 8537), Kyoto Protocol to the United Nations Framework Convention on Climate Change (Law No. 8219).\n\nIt is precisely in this section of the Agreement (Article 287.3) where the Parties “(…) commit to ensuring that they will have ratified, by the date of entry into force of this Agreement, the Amendment to Article XXI of CITES, adopted in Gaborone (Botswana) on April 30, 1983.” As has been seen, this obligation assumed by the State constitutes the second article of the legislative bill submitted for consultation before this Chamber, the constitutionality of which will be addressed later. Following this, it is also indicated in the Agreement that the Parties committed to ratifying the “Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade”, an instrument that has already been ratified by Costa Rica through Law No. 8705. In the same vein, Article 290.2.a of the Agreement states that, regarding Trade in Fishery Products, the Parties commit to adhering to the principles of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Law No. 8059).\n\nParticular mention is deserved by Article 290.3 of the Agreement, which regulates the following: “The Parties agree, to the extent they have not done so, to adopt port State measures in accordance with the Agreement of the Food and Agriculture Organization of the United Nations on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (…)”. In accordance with what was verified in the Legislative Assembly, the Accession to said Agreement is being processed through legislative file 18.320, and the legislative bill is titled: “APPROVAL OF THE ACCESSION TO THE AGREEMENT ON PORT STATE MEASURES TO PREVENT, DETER AND ELIMINATE ILLEGAL, UNREPORTED AND UNREGULATED FISHING (PSMA) AND ITS ANNEXES”. As was confirmed, said Agreement related to port State measures and Illegal Fishing has not yet been approved by that parliamentary body. The last verified legislative action on this international agreement was its entry on the Plenary Agenda on September 10, 2012, without the legislative procedure having been concluded to obtain accession to date (http://www.asamblea.go.cr/Centro_de_Informacion/Consultas_SIL/Pginas/Detalle%20Proyectos%20de%20Ley.aspx?Numero_Proyecto=18320). It is important to remember that regarding the concept of “accession” to an international agreement, this Tribunal has stated the following in its jurisprudence:\n\n“ACCESSION TO AN INTERNATIONAL AGREEMENT. Prior to reviewing the merits of the legislative bill consulted, it is appropriate to refer to the concept of accession as a mechanism for ratifying an international instrument that was not directly negotiated by the Government of Costa Rica, but to which it subsequently decides, in a sovereign manner, to be bound by its content. The concept of accession is established in Article 2 of the Vienna Convention on the Law of Treaties, Law No. 7615 of July 24, 1996, by stating, as pertinent, that “\"Ratification\", \"acceptance\", \"approval\" and \"accession\" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty.” Likewise, Article 11 regulates the forms of expressing a State's consent to be bound by a treaty, consent that may be evidenced by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, or accession. In relation to this numeral, the Government of Costa Rica made a reservation to the effect that the constitutional legal system of our country does not authorize any form of consent that is not subject to the approval of the Legislative Assembly. The foregoing, of course, in light of what is indicated in Article 121 of the Political Constitution, which provides in subsection 4 that it corresponds exclusively to the Legislative Assembly to approve or reject international conventions, public treaties, and concordats. That is to say, the consent of the Costa Rican State is always linked to the authorization of the parliamentary body. Furthermore, the Vienna Convention establishes in Article 15 the possibility for a State to accede to an international instrument and regulates it in the following sense: “Article 15.- Consent to be bound by a treaty expressed by accession. The consent of a State to be bound by a treaty is expressed by accession: \n\na) When the treaty provides that such consent may be expressed by that State by means of accession; b) When it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or c) When all the parties have subsequently agreed that such consent may be expressed by that State by means of accession.” From said numeral, it follows that the possibility of acceding to the text of an international agreement not directly negotiated and signed is legitimate, provided that the Parties negotiating the convention so authorize it or that possibility is foreseen in the convention itself” (see judgment number 2011-001308 of 3:10 p.m. on February 2, 2011).\n\nIn the case at hand, as indicated, the Costa Rican State, through the approval of the Association Agreement, commits to adopting measures aimed at implementing port State measures, in accordance with the cited Agreement of the Food and Agriculture Organization of the United Nations, so that control and inspection systems are established, as well as incentives and obligations for the rational and sustainable long-term management of fisheries and coastal ecosystems. In this regard, we must clarify that the Association Agreement does not impose, as a *sine qua non* requirement for validity, the approval of accession to the Agreement on Port State Measures. It merely indicates that the State that has not adopted it, like ours, must at least adopt the corresponding measures that refer to the content of that Agreement to prevent, deter, and eliminate illegal fishing and implement control and inspection systems, as well as incentives and obligations for the rational and sustainable long-term management of fisheries and coastal ecosystems, which, in the case of choosing its adoption, does not exempt it from following the procedures established in our legal system. Likewise, from a comprehensive reading of Article 290, it is clear that its objective is for the Parties to recognize the need to promote sustainable fishing, in order to contribute to the conservation of fish stocks and the sustainable trade of fishery resources, which is fully consistent with the protection safeguarded by the right to a healthy and balanced environment in our State; and the reference made to this Convention in subsection c) was not made with the imperative that, for example, is established in point 2 in relation to other principles.\n\nContinuing with the substantive analysis of the Association Agreement, it is observed that its Article 295 expresses consent to facilitate interregional relations through dialogue forums with civil society, with balanced representation of environmental, economic, and social actors. Likewise, this Title establishes a Panel of Experts responsible for “examining whether a Party has failed to comply with the obligations set out under Articles 286, paragraph 2; 287, paragraphs 2, 3 and 4; and 291 of this Title, and to formulate non-binding recommendations to resolve the matter (…)” (Article 299).\n\nThroughout the Agreement, as has been seen, there are a series of rules that allow the participation of civil society in certain issues of significant relevance. In the Chamber's consideration, it is necessary to highlight this particularity of the Agreement since it finds a connection with a transcendental principle of constitutional origin, such as citizen participation, contemplated in Article 9 of the Constitution. The jurisprudence of this Tribunal has been extensive in developing this right and highlighting its relevance in our legal system. Thus, it has been held that this principle of citizen participation in decision-making has become one of the fundamental pillars upon which the democratic system rests. In that sense, Article 9 of the Political Constitution establishes, among other characteristics, that the Government of the Republic must be participatory. With the reform effective as of July 31, 2003, to Article 9 of the Fundamental Law, it was established that the Government of the Republic must be, among other aspects, participatory, which implies that the current government is an articulator of what is established by popular deliberation. In other words, it is the citizens who have a greater participation in political decision-making; they can and must exert direct influence on public decisions. This principle, seen as a fundamental right of citizen participation, establishes that the people must be enabled to express themselves equally in both majority and minority viewpoints (see judgment number 015763-2011 of 9:46 a.m. on November 16, 2011). Thus, the Chamber considers that the Association Agreement *sub examine* contains a set of rules that promote the advancement of this constitutional right, hence it is worth highlighting this virtue in its text.\n\nIn Title IX called “Regional Economic Integration,” the commitments acquired by the Central American region on this subject are described, mainly focused on the area of customs procedures, technical barriers to trade, sanitary and phytosanitary measures, among others, for all of which a series of previously agreed deadlines was established to fulfill such integration requirements. It must be remembered that the Central American region has assumed many of these duties stemming from the integration process that has been developing for several years; however, for some matters, the Agreement orders the fulfillment of commitments within duly defined timeframes.\n\nA subsection to highlight in this Part IV of the Agreement is the one set forth in Titles X and XI, concerning “Dispute Settlement.” Therein, a dispute settlement mechanism is established based on an arbitration or Special Group procedure (Title X). This procedure applies only to the Trade Agreement (Part IV), and it is not possible to execute it in disputes between Central American countries. In this Title X, there is freedom of choice of the forum to raise the dispute, but obviously not through both paths. In that sense, Article 326 of the Agreement establishes the possibility that if a complaining Party wishes to seek redress for the violation of an obligation under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, it may resort to the rules of the WTO Agreement.\n\nOn the other hand, it is explained that prior consultations must be mandatorily raised, and once that procedure is exhausted without reaching a solution, the request for a Special Group is made, which is formed from the List of Experts defined by the parties. This Special Group issues a decision, and if a party is reluctant to comply with it, it grants the counterparty the right to compensation or suspension of benefits in equivalent terms (Article 314). Additionally, a mediation mechanism is proposed for non-tariff measures that produces legal effects in the event of a mutually agreed solution. This mediation procedure is contemplated in Title XI of the Agreement. Specifically, Article 334 explains that mediation is independent of Title X (Dispute Settlement) and is not intended to serve as a basis for dispute settlement procedures under said Title. That is, the request for mediation that any of the Parties may raise shall not preclude recourse to Title X.\n\nAs Article 308 of the Agreement correctly establishes, the dispute settlement provided for in Title X shall only serve to \"(…) resolve any dispute between the Parties concerning the interpretation or application of Part IV of the Agreement (…)”. That is, arbitration, mediation, and other alternative dispute resolution mechanisms are established so that the Parties (the States) can enforce the obligations acquired by their counterparty, provided that these are obligations that do not go beyond the patrimonial scope protected in Article 43 of the Political Constitution.\n\nFurthermore, Article 319 of the Agreement provides that the Rules of Procedure that will govern dispute resolution shall be adopted by the Association Council, unless the disputing Parties agree otherwise. In Article 321 of the Agreement, the figure of “amicus curiae”, is recognized, through which the possibility is granted for natural or legal persons with an interest in the matter to submit briefs for the possible consideration of the Special Group, in accordance with the Rules of Procedure. In Article 323.2 of the Agreement, it is clarified that any decision of the Special Group shall be final and binding on the Parties, which—as has been explained—is a logical consequence of the signing and prior acceptance by the States of the arbitration clause in this type of international instrument, the same which has been accepted by this Chamber on previous occasions.\n\nFinally, from reading both Title X and Title XI, it is not apparent that this Association Agreement contemplated the establishment of mechanisms for disputes between investors of one Party and States of another; nor is it observed that there is any subsection or section within the Agreement, especially called to regulate Dispute Settlement between a Party and an investor of the other party. On the contrary, in Title X (Dispute Settlement) only the term “Parties” is mentioned in each of its rules. It is clear that the notion of “Parties” must be read in accordance with what is provided in Part V of the Agreement, where the final provisions of the convention are outlined, among which is Article 352, which precisely refers to the “Definition of the Parties” for the purposes of the Agreement. In that article, only the Central American Republics, on one hand, and the Member States or the European Union, on the other, are cited. Thus, no other interpretation would be possible than to conclude that the dispute settlement mechanism is only for disputes between States. The same is verified from reading Article 329.3 of the Agreement, which indicates that “this Title shall apply bilaterally between the EU Party, on the one hand, and each of the Republics of the CA Party, on the other.” This rule is contained within Title XI, which regulates the “Mediation Mechanism for Non-Tariff Measures.” Thus, for the resolution of the *sub lite* matter, it is not appropriate to rely on the reasons expressed in judgment number 2007-09469 (FTA with the USA) regarding this subject of arbitration and alternative dispute resolution, since on that occasion such reasons were referred specifically to the scope of Investor-State Dispute Settlement, a scenario that, as seen, was omitted in the present Association Agreement.\n\nMoving past the subject of Dispute Settlement, the Association Agreement under review also undertook to regulate in its Title XII a special section called “Transparency and Administrative Procedures.” In Article 338, the agreement between the Parties is developed to cooperate in the relevant bilateral and multilateral forums to increase transparency, including the elimination of bribery and corruption in matters covered by Part IV of the Agreement (Trade Part). The remaining rules contained in this Title are those necessary to implement and fulfill this mission between both regions.\n\nFinally, in Title XIV called “Exceptions,” common exceptions for temporary restrictions due to balance-of-payments problems are set forth. Similarly, in this section, it is clarified that the fiscal or taxing power of the States is not affected in any way by virtue of the Agreements.\n\n**X.-** Based on the foregoing, regarding the substance of the Association Agreement under review, no manifest unconstitutionalities are detected, which does not preclude highlighting the following: 1) by virtue of the fact that numeral 290.3 of the Agreement provides: \"The Parties agree, to the extent they have not already done so, to adopt port State measures in accordance with the Agreement of the Food and Agriculture Organization of the United Nations on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, to implement control and inspection systems, as well as incentives and obligations for the rational and sustainable management of fisheries and coastal ecosystems in the long term.\" and Costa Rica has not yet approved said convention, we must specify that the Association Agreement does not impose, as a *sine qua non* requirement for validity, the approval of accession to the Agreement on Port State Measures. It is limited to indicating that the State that has not adopted it, such as ours, must at least adopt the corresponding measures that refer to the content of that Agreement to prevent, deter, and eliminate illegal fishing and implement control and inspection systems, as well as incentives and obligations for the rational and sustainable management of fisheries and coastal ecosystems in the long term, and that in the event of opting for its approval, it is not exempt from following the procedures provided in our legal system. Likewise, from a comprehensive reading of Article 290, it is clear that its objective is for the Parties to recognize the need to promote sustainable fishing, in order to contribute to the conservation of fish stocks and sustainable trade in fishery resources, which is fully consistent with the protection that safeguards the right to a healthy and balanced environment in our State; and the reference made to this Convention in subsection c) was not made with the imperative that, for example, is established in point 2 regarding other principles; 2) the mere approval of the Agreement does not imply that Costa Rica recognizes the jurisdiction of the Central American Court of Justice; and 3) Article 214 of the Agreement proposes, as a sanction for a supplier that has participated in illegal or fraudulent activities related to procurement, the sanction of ineligibility to participate in the Party's procurements, either indefinitely or for a specified period; consequently, each Party may opt for one of these two variants, but in the case of Costa Rica, the option would be ineligibility for a specified period, given that indefinite sanctions are impermissible.\n\n**XI.-** The other articles contained in bill No. 18.563. As indicated above, besides the ratification of the \"Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other,\" bill number 18.563 proposes the approval of the following norms: 1) the Amendment to Article XXI of the \"Convention on International Trade in Endangered Species of Wild Fauna and Flora\" (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties, in Gaborone, Botswana, on April 30, 1983; 2) the Creation of the Council of Land Border Posts; 3) the Creation of two taxes to cover, mainly, the costs of works related to the operation, conservation, and expansion of land border posts; 4) finally, the Representation before the Organisation for Economic Co-operation and Development (OECD) that is sought to be assigned to the Ministry of Foreign Trade (COMEX). Each of the provisions mentioned will be examined in the order in which they were presented.\n\n**XII.-** Regarding the Amendment to Article XXI of the *\"Convention on International Trade in Endangered Species of Wild Fauna and Flora\"* (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties, in Gaborone, Botswana, on April 30, 1983, it must be noted that from the statement of purposes of this bill and the reading of the Association Agreement, as part of the political negotiation between both regions, it was agreed that along with the ratification of the Agreement, the obligation for the Central American States to approve the aforementioned Amendment to Article XXI would be included. This amendment seeks the recognition of any regional economic integration organization constituted by sovereign States as a Party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. In general terms, it is also necessary to recall that CITES is an international instrument aimed at the protection of wild fauna and flora through the regulation and limitation of international trade in protected species. The Legislative Assembly approved that convention through Law No. 5605 of October 30, 1974. The approval of this amendment in the bill under study is reasonable, as the necessary validation of this Amendment has been the product of a political negotiation inherent to the Association Agreement to be approved. In the Central American sphere, only Guatemala, Panama, and Nicaragua have ratified the Gaborone Amendment (see website: http://www.cites.org/esp/disc/parties/gaborone.php), hence it has been considered necessary for the remaining three countries of our region (El Salvador, Honduras, and Costa Rica) to proceed in the same manner. It is noted that in the publication in Volume V of Supplement No. 180 of the Official Gazette La Gaceta No. 220 ( http://alcance.gaceta.go.cr/pub/2012/11/14/ALCA180-5_14_11_2012.pdf ), at the end of Article 3 and before Article 4, the following paragraph was introduced: \"*Administered by the International Union for Conservation of Nature and Natural Resources on behalf of the United Nations Environment Programme.*\" After comparing those lines with the text of the Amendment in the bill (folio 4980 of the certified copy of the legislative file sent to the Chamber, volume XV), it is observed that the referred lines do not correspond to the original discussed and approved in the first debate in the Legislative Assembly. However, the foregoing does not constitute an essential procedural defect. As indicated in Whereas Clause VII of this pronouncement, regarding the requirement of publication in La Gaceta pursuant to Article 117 of the Regulations of the Legislative Assembly, the jurisprudence of the Chamber dictates that the crux of the matter consists of analyzing, according to the specific case, to what extent an error in publication leads to a defect in publicity, from which the general public would have a confused understanding of the content of a bill to be approved in the Legislative Assembly or their informed participation in its discussion would be restricted. It is not, therefore, a matter of applying rigid formalism, foreign to the circumstances of the case, but of employing legal hermeneutics in accordance with the rules of sound criticism, such that norms are interpreted in the way that best guarantees the realization of the purpose or purposes they pursue. In the instant case, the mentioned defect –a separate addition in Articles 3 and 4 of the Amendment– does not alter the content of the latter nor distract from the correct meaning of what is regulated in said numerals, which is why no impediment whatsoever is seen to popular participation in the adoption of major national decisions through the publicity of legislative projects. Likewise, the extra incorporated lines are meaningless in themselves, fail to complete an idea, and their syntax confirms this. Based on this understanding, this Court does not consider that the inclusion of the approval of the Amendment to Article XXI of the *\"Convention on International Trade in Endangered Species of Wild Fauna and Flora\"* (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties, in Gaborone, Botswana, on April 30, 1983 (bill processed in legislative file No. 18.563) raises any conflict whatsoever with Constitutional Law.\n\n**XIII.-** In relation to the creation of the Council of Land Border Posts (contemplated in the third article of the bill), the creation of two taxes to cover, mainly, the costs of works related to the operation, conservation, and expansion of land border posts (fourth article of the bill), and the Representation before the Organisation for Economic Co-operation and Development (OECD) that is sought to be assigned to the Ministry of Foreign Trade (COMEX), provided in the fifth and final article of bill No. 18.563, it is pertinent to clarify that, in the opinion of this Chamber, these provisions result from a typical manifestation of the ordinary legislative activity assigned to the Legislature. As can be clearly extracted from a simple reading of such norms, they are not matters that must be analyzed by this Constitutional Court under the figure of a mandatory legislative consultation of constitutionality, inasmuch as, in accordance with Article 96, subsection a) of the Law of Constitutional Jurisdiction, the Chamber is called upon to issue its consultative opinion, mandatorily, only in those cases where the approval of bills regarding constitutional reforms, reforms to the Law governing this jurisdiction, or those cases tending towards the approval of international conventions or treaties is sought. For the purposes of this consultation, it is important to highlight the last of these cases: the approval of international conventions or treaties. As has been able to be appreciated, the first and second articles of bill No. 18.563 deal with the approval by our country of two international instruments, respectively: the \"*Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other*\" (in the first article), and the Amendment to Article XXI of the *\"Convention on International Trade in Endangered Species of Wild Fauna and Flora\"* (known as CITES), adopted at an extraordinary meeting of the Conference of the Parties, in Gaborone, Botswana, on April 30, 1983 (second article). In both cases, the mandatory consultation was appropriate since it involves the approval of international conventions or treaties, in the terms provided by subsection a) of Article 96 of the Law of Constitutional Jurisdiction. However, the Chamber considers that the mandatory legislative consultation of constitutionality does not proceed with respect to the other provisions contained in the bill processed under legislative file number 18.563, since none of them possesses the legal nature of an international treaty or convention, in the terms required by subsection a) of the aforementioned Article 96. Although they could be considered norms that contribute to the implementation of the Agreement, the fact is that they are norms of domestic national law. Consequently, regarding Articles 3, 4, and 5 of legislative file No. 18.563, the consultation is inadmissible and cannot be addressed.\n\n**XIV.- Corollary.** By virtue of the foregoing, regarding the \"*Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other*,\" and the \"*approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties, in Gaborone, Botswana, on April 30, 1983*,\" no essential procedural defects or unconstitutional provisions are found. It is noted that both the Agreement and the Amendment require for their approval a vote of an absolute majority of the votes present. Regarding the Council of Land Border Posts (contemplated in the third article of the bill), the creation of two taxes to cover, mainly, the costs of works related to the operation, conservation, and expansion of land border posts (fourth article of the bill), and the Representation before the Organisation for Economic Co-operation and Development (OECD) that is sought to be assigned to the Ministry of Foreign Trade (COMEX), provided in the fifth and final article of bill No. 18.563, the consultation is inadmissible and cannot be addressed.\n\n**XV.- Separate note of Judge Castillo Víquez.** Regarding the vote required for the approval of the consulted bill, it is necessary to keep in mind that the qualified majority is required for its final approval, not in the first debate, that is, after the conclusion of the second debate, just as the majority of this Court has held.\n\nOn the other hand, I share the thesis that the Convention does not require a qualified majority but for other reasons. In the first place, because competences are not being transferred to a supranational entity, such that its decisions are of imperative compliance for the State of Costa Rica. Secondly, Article 6, paragraph 2, is clear in the sense that the decisions adopted by the Association Council are binding for the parties, but for their execution, **the internal norms and legal procedures of each Party must be respected.** The foregoing means, no more and no less, that the decisions of that Council, which are adopted by consensus, are not of automatic application; rather, for that purpose, the constitutional competences that are in Constitutional Law (values, principles, and norms) held by the constitutional bodies must be observed, for example: if it involves a substantial modification to the convention, whether because its object or purpose is broadened or modified, or because new obligations are imposed on the State of Costa Rica, legislative approval will be required, as well as for those decisions that are not expressly or implicitly derived –theory of implied powers– from the Convention that affect fundamental rights, since their legal regime is reserved to the Law. **When it involves the exercise of sovereign powers that Constitutional Law confers upon the State's bodies**, and whose exercise is partially transferred to supranational bodies –a typical case of the exercise of domestic competences by an international body–, the matter is resolved through the aggravated approval of the Convention. On the contrary, if the obligations or other duties derive from the Convention itself, the Executive Branch possesses the competence to fully comply with them through lower-ranking protocols, the exercise of regulatory power, and other powers-duties that the legal system attributes to it.\n\nA different scenario is when, by virtue of being a party to the treaty or convention, a body created by it, in the exercise of the competences attributed to it in the international instrument, adopts an act that, according to the convention, is binding for all contracting parties –a typical case of the exercise of international competences by an international body–. In this scenario, a qualified majority is not required, since there is no transfer of competences from internal bodies to supranational bodies; therefore, the majority required for its approval is the absolute majority of the votes present, as provided in Article 121, subsection 4, first paragraph, in relation to numeral 119 of the Constitution.\n\nFinally, I do not endorse the assertion that the qualified majority is only required when it involves a community model, for although it is true that the partial reform to the Political Constitution, through Law No. 4123 of May 31, 1968, was carried out adopting the Central American Common Market as a reference framework, the actual fact of the matter is that today, the dynamics of the international economy and politics at the global level, which drives a series of economic institutions for integration, commercial exchange, and economic cooperation among States themselves, and between them and international organizations at the global, regional, or bilateral levels, have created new modalities of economic integration that are in accordance with Constitutional Law, and in the event that sovereign competences are transferred to the organizations or institutions created in international treaties, their approval requires the qualified majority established by numeral 121, subsection 4, paragraph 2, of the Political Constitution; a situation that does not occur in the present case for the reasons noted *supra*.\n\n**Por Tanto:**\n\nThe consultation is addressed in the sense that Articles 1 and 2 of legislative file No. 18.563, corresponding respectively to the \"*Law for the Approval of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other;* and *the approval by the Republic of Costa Rica of the Amendment to Article XXI of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, adopted at an extraordinary meeting of the Conference of the Parties, in Gaborone, Botswana, on April 30, 1983*\" contain no essential procedural defects or unconstitutional provisions. Regarding Articles 3, 4, and 5 of legislative file No. 18.563, as they are not matters subject to a mandatory consultation of constitutionality, this is inadmissible and cannot be addressed. Judge Castillo Víquez records a separate note. Judges Armijo Sancho and Cruz Castro dissent and address this legislative consultation in the sense that they find procedural and substantive defects. Let this resolution be notified to the Directorate of the Legislative Assembly.-\n\nGilbert Armijo S.\n\nPresidente\n\nErnesto Jinesta L. Fernando Cruz C.\n\nFernando Castillo V. Paul Rueda L.\n\nAracelly Pacheco S. José Paulino Hernández G.\n\n**Dissenting Vote of Judges Armijo Sancho and Cruz Castro, authored by Judge Armijo:**\n\n***With respect to the procedure:***\n\nOnce the process followed by the bill processed in legislative file No. (end of excerpt).\n\n18.563, the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, reveals the following procedural defect:\n\nA) Violation of the legislative procedure for approval of this international treaty, due to the majority obtained in the first debate vote:\n The undersigned Magistrates consider that in the present case, on the occasion of the approval of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, legislative file No. 18.563, Article 121(4) of the Political Constitution has been violated, insofar as said bill was not approved by a qualified majority, even though it clearly attributes or transfers certain competencies to a community legal order, with the purpose of achieving regional and common objectives. In this regard, it is patently obvious that Community Law covers both cases where various States accede through integration mechanisms, and those where, as a preliminary step to these, they initiate collaborative and cooperative relations, as is the specific case, all of which undoubtedly justifies the requirement of the qualified majority set forth in Article 121(4) of the Constitution for the approval of international treaties of this type. Indeed, once the minutes of plenary session No. 12 of Tuesday, May 21, 2013, were reviewed, it is clearly deduced that the bill was only approved by 37 deputies out of 41 present (4 deputies voted against), see folio 12387 of the certified copy of legislative file No. 18.563, thus failing to achieve the majority provided for in the Constitution for norms of this class. In this vein, among the competencies transferred to supranational bodies, it is necessary to mention those pertaining to the Association Council (see Articles 4 to 6 of the Agreement), mainly Article 6 which stipulates: \"1.- To achieve the objectives of this Agreement, the Association Council shall have the power to adopt decisions in the cases provided for in this Agreement. 2.- The decisions adopted shall be binding on the Parties, which shall take the necessary measures to implement them in accordance with the internal rules and legal procedures of each Party\", as well as those relating to the Association Committee, which under the terms of the Treaty will be the body responsible for the general implementation of this Agreement, and which will also be empowered to adopt decisions in the cases provided for in the Treaty, or when the Association Council has delegated such power to it (see points 2 and 4 of Article 7 of the Agreement). For this reason, and given the seriousness of the defect observed in this instance, the undersigned Magistrates dissent from the vote and answer the consultation formulated, in the sense that the present bill for the approval of the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, violates the Law of the Constitution, because it does not achieve the majority provided for in Article 121(4) of the Fundamental Norm for the approval of norms of this type.\n\nRegarding the substance of the bill:\n The undersigned Magistrates disagree with the majority vote on several of the issues raised on the merits and consider that the Agreement establishing an Association between Central America, on the one hand, and the European Union and its Member States, on the other, contains some unconstitutionalities, as will be set forth below. We believe that regarding some provisions, the consulted bill is unconstitutional with respect to certain assumptions of the Social and Democratic Rule of Law (Estado Social y Democrático de Derecho). To support each of these aspects, we will address each one separately.\n\n Before analyzing the specific regulations on each of the issues, we consider it important to examine, just as was done on the occasion of the Dissenting Vote to consultative opinion No. 2007-09469 of 10:00 a.m. on July 3, 2007, the concept of the Social and Democratic Rule of Law and its impact on some of the provisions regulating the multilateral Convention under review.\n\nI- GENERAL CONSIDERATIONS ON THE SOCIAL AND DEMOCRATIC RULE OF LAW\n The Costa Rican State is a Social and Democratic Rule of Law. This statement is not empty of content but has its implications and its transcendence, especially because such denomination has been derived by reiterated Constitutional Jurisprudence based on the Text of Our Magna Carta itself.\n\nA) General Concept of the Social and Democratic Rule of Law:\n The theory of the Rule of Law (Estado de Derecho) was developed at the end of the 19th century with the objective of subjecting the State to the Law, of curbing arbitrariness, and of recognizing and guaranteeing a series of fundamental rights for individuals. This theory was consolidated in democratic political systems, to the extent that it is held that every democracy, in order to be one, must be framed within a Rule of Law. Thus, it was more properly referred to as the Democratic Rule of Law (Estado Democrático de Derecho). Subsequently, from the second half of the 19th century onward, when States assumed a more predominant role within modern societies, and when States were endowed with a series of economic policy instruments to seek greater equity in societies, the previous concept was completed, being called the Social and Democratic Rule of Law. That is why it is said that this latter concept is more complete than the former, as it alludes not only to the subjection of the State to the rule of law (Rule of Law), but also to the actions that the State must undertake as a manager of public policies aimed at achieving greater social equity (Social), and to doing so within a procedural framework that allows mitigating asymmetries of a social, political, and economic order, thus fostering the effective validity of the fundamental values of democracy. Despite the division of this agreement into three parts: political dialogue, cooperation, and trade, the truth is that a large part of its provisions circumvent the scope of the Social and Democratic Rule of Law, as will be seen below.\n\nB) Costa Rica as a Social and Democratic Rule of Law:\n The Costa Rican State is a Social and Democratic Rule of Law based on what was established by the Original Constituent Power (Acts of the 1949 Constituent Assembly) and in constitutional jurisprudence, even though there is no constitutional norm that says so literally.\n\n1) According to what was established in the Acts of the National Constituent Assembly (Actas de Asamblea Nacional Constituyente)\n \"A Constitution is made for a people with fundamentally differing points of view\" (Act No. 49) and the Draft Constitution discussed in 1949 \"far from establishing an exclusivist economic thesis, establishes a flexible system so that in the future governments of opposing tendencies, different ideologies, may come, which may, despite this, exercise their activities within the constitutional framework, without the need to reform the Political Charter ... the drafting Committee tried to establish a Constitution that contemplates the aspirations of different groups and sectors, flexible - therefore - as expressed by the North American Justice Holmes in his dissenting vote of 1905 that I allowed myself to read here, no Constitution should encompass a specific economic theory, be it that of interventionism, be it that of classical liberalism, on the contrary, the Constitution must be malleable, flexible, so that in the future the country can legally accommodate new tendencies and can continue its life uninterruptedly, especially in economic and social matters, without the need for constant reforms of the Political Charter.\" (see Act number 50) for which reason it was later stated in that same act that \"The contemporary world demands that political freedoms be complemented with social security institutions that guarantee the dignity of the human person.\" Thus, our Political Constitution has maintained a complement between freedoms and social rights, because even if it had dealt entirely with one (freedoms) or the other (social rights) it would cease to be a Democratic Constitution, as is also mentioned in the same Act 50 of the Constituent Assembly, when it was again held that: \"no Constitution should encompass a specific economic theory, whether it be that of interventionism, or that of classical liberalism, unless it is the Constitution of a totalitarian or dictatorial country. On the contrary, the Constitution of democratic countries must be flexible, so that in the future it can accommodate new tendencies…\" for as Constituent Rodrigo Facio says: \"It is a balance, in my opinion, a very healthy one, Social Justice with Economic Efficiency: let justice not kill efficiency, nor efficiency kill justice.\" Such a tendency is also denoted in our Political Constitution when the chapter relating to social guarantees (Act No. 115) is discussed, particularly in the drafting of the current Article 50 which states: \"The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth...\" note that against the proposal that sought to change the word \"organizing\" for the word \"guiding\", the former was preferred because it was said that the contrary \"comes to mutilate a fundamental principle, which is that the State must participate in the guidance of the national economy.\" This text and its content have special relevance, because it implies that the State must participate in the guidance of the national economy and that there must not be provisions of a legal order that limit, in the abstract, without any nuance, the intervention of the State or that justify its generalized and unlimited intervention. It would not be admissible for legislation to define, without limiting it to a specific situation, a liberal or interventionist orientation.\n\n2) Constitutional Jurisprudence (Jurisprudencia Constitucional):\n This Constitutional Court has been systematically reiterating in its resolutions that our country is a Social and Democratic Rule of Law, based fundamentally on the values derived from Articles 50 and 74 of the constitutional text. In this regard, just to mention some judgments, there are the following: 1993-3464, 1995-0550, 1995-1273, 1995-3067, 1995-4286, 1995-4286, 1995-5545, 1995-6347, 1996-1029, 1997-6469, 1996-2379, 1996-3250, 1996-2810, 1997-1019, 1997-1625, 1997-5035, 1997-8325, 2004-14247, 2003-2794, 2003-2771, 2005-16962, 2006-9565, 2006-17113. From all of them, several conclusions can be drawn: first, that the basic general principle of the Political Constitution is embodied in Article 50, by providing that \"the State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth\" which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in Article 74 ibid, determines the very essence of the political and social system we have chosen for our country and which defines it as a Social Rule of Law (Estado Social de Derecho). Second, that the current Constitution, in its Article 50, gives constitutional foundation to a certain degree of State intervention in the economy, postulating economic freedom but with a certain degree of reasonable, proportionate, and non-discriminatory state intervention, allowing the State, within such limits, to organize and stimulate production, as well as to ensure an \"adequate\" distribution of wealth. Third, that freedom of commerce is not an absolute individual guarantee, but finds its limits in those that the State legitimately establishes, for the benefit of the generality of its citizens, always within the global context of the Law of the Constitution. Fourth, that one of the basic connotations of the Costa Rican State, like every Social Rule of Law, is the intervention of those who govern, to provide a solution to social problems. The Political Constitution itself obliges the State to actively participate, not only in production processes (Article 50), but also in those related to the development of the fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee them a dignified and useful existence for society. Fifth, that public administrations, far from fulfilling a passive role of solely and exclusively fostering the individual exercise of fundamental rights, have a duty of provision and assistance in order to procure for all persons who make up the community a minimum vital sphere and, of course, to eradicate all obstacles and impediments to the achievement of real and effective equality among them. Sixth, that from the definition of the Costa Rican State as a Social State derives the State's power to deploy a series of limitations on fundamental rights in consideration of the greater benefit of the community, in order to guarantee public order, social morality, the rights of third parties (Article 28 of the Constitution), and the validity of democratic and constitutional values. Seventh, that the Social Rule of Law produces the phenomenon of the incorporation into the fundamental text of a series of political objectives of great social relevance and the introduction of an important number of social rights that ensure the common good and the satisfaction of the elementary needs of individuals. These conceptual determinations are important and of great transcendence, because constitutional jurisprudence has recognized a special strength in fundamental rights and in the political and economic system, which undoubtedly encompasses the Social and Democratic Rule of Law. In Considering VII of judgment 03-2771, it is stated that \"....In the case of constitutional reform, there is a large and important difference: those constitutional norms relating to fundamental rights or transcendental political decisions can only be reformed by a Constituent Assembly in accordance with Article 196 of the Political Constitution. For the sake of the firmness of the statement, we repeat that the original norms concerning fundamental rights and political and economic systems can only be diminished by a constituent assembly. …\"; in this same Considering, it is reiterated that the partial reform of the Constitution can be carried out by the Legislative Assembly, \"…as long as its activity does not negatively affect fundamental rights, nor the political and economic system, that the Costa Ricans substantially gave themselves through the constituent power…\". These interesting insights on the value of the political and economic system, which is linked to the Social and Democratic Rule of Law, have an impact on some of the issues of the Treaty, because State intervention is limited beyond what is constitutionally permitted.\n\nC) Instruments of the Social and Democratic Rule of Law:\n In order for the Costa Rican State to fulfill that duty of provision and assistance to procure a minimum vital sphere for all inhabitants, and to eradicate all obstacles that impede social equity, it is endowed with a series of tools, such as economic policy instruments to support and protect the national producer, and mechanisms that allow the State to intervene in the economy to promote a fairer and more adequate distribution of wealth, among many others. All these instruments, as will be stated below, are diminished, weakened, and neutralized by certain provisions contained in the consulted bill, as explained below.\n\nII.- CONFRONTATION OF THE PROVISIONS OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN CENTRAL AMERICA, ON THE ONE HAND, AND THE EUROPEAN UNION AND ITS MEMBER STATES, ON THE OTHER, WITH THE INSTRUMENTS OF THE SOCIAL AND DEMOCRATIC RULE OF LAW:\n\nA) On the unconstitutionality of the power provided for in Article 6.2 of the Treaty, which confers binding character on the decisions adopted by the Association Council.\n As stated in the dissenting vote to judgment No. 2007-09469, which resolved the accumulated Consultations numbers 07-005632-0007-CO and 07-007153-0007-CO filed respectively by Lisbeth Quesada Tristán and the deputies Rafael Elías Madrigal Brenes, Alberto Salom Echeverría, José Merino del Río, Ronald Solís, Marvin Rojas Rodríguez, José Joaquín Salazar, Nidia M. González, Leda Zamora Chaves, Andrea Morales, Sadie Bravo de Maroto, Grettel Ortiz Alvarez, Patricia Quirós Quirós, Francisco Molina Gamboa, Lesvia Villalobos Salas, José Rosales, Olivier Pérez González, Oscar López, Elizabeth Fonseca and Orlando Murillo, regarding the approval bill for the \"Free Trade Agreement between the Dominican Republic, Central America and the United States\", a substantive defect is noted in the content of the Treaty, to the extent that binding character is given to the decisions of the Association Council. In this regard, on that occasion it was considered:\n\n \"According to paragraph 2 of Article 10.23 of the consulted Treaty, the decisions of this Commission are binding on our Courts. Said provision literally states:\n\n \"Article 10.23: Interpretation of the Annexes\n\n … 2. The decision issued by the Commission pursuant to paragraph 1 shall be binding on the tribunal and any decision or award issued by the tribunal must be consistent with that decision. If the Commission fails to issue such a decision within the 60-day period, the tribunal shall decide on the matter.\"\n\n This provision, inserted into this Treaty, establishes such binding force, unlike other Free Trade Agreements signed and ratified by Costa Rica where no clause is established determining that the interpretations of legal provisions made by the Commission are binding on the Parties. Precisely this addition has a qualitative impact vis-à-vis the Constitution, a situation that makes this provision unconstitutional. Thus then, this Commission would not only have broad powers of interpretation, but these would be of mandatory compliance for the Judicial Courts and administrative bodies, as established in Article 20.20.2:\n\n \"Article 20.20: Proceedings Before Domestic Judicial and Administrative Bodies\n\n …\n\n 2. The Party in whose territory the tribunal or administrative body is located shall present to them any interpretation agreed upon by the Commission, in accordance with the procedures of that forum. \"\n\nIn the specific case, it is observed, as in the aforementioned case, that the decisions of the Association Council have binding character, which constitutes a breach of the sovereignty of the Nation. The foregoing is aggravated by the fact that the decisions of said Council, in the case of the Central American countries, are adopted by consensus, which could mean that a decision is taken with which the representative of Costa Rica did not agree (taking into consideration that consensus is not synonymous with unanimity). All of which is openly contrary to Constitutional norms, principles, and values, since not only can this Association Council exercise powers exclusive to the Branches of the Republic (such as modifying and interpreting the provisions of the Treaty), but also its recommendations are materially binding, even for the Judicial Courts. The violation of the provisions of the referenced Agreement against the Law of the Constitution is evident, reason for which its unconstitutionality must be declared.\n\nB) On the unconstitutionality of what is provided for in environmental matters.\n As in the case decided in judgment No. 2007-09469, it is considered that the existing regulations in the Treaty under study regarding environmental matters are violative of the provisions of Article 50 of the Political Constitution.\n\nIn this regard, although the Treaty insists on the obligation of the States Parties to respect domestic environmental legislation, as well as to pursue sustainable development, the truth is that trade in forest resources is permitted without major limitation. In this order, Article 289 thereof stipulates:\n\n\"Article 289. Trade in forest products.\nWith the aim of promoting the sustainable management of forest resources, the Parties undertake to work together to improve the application of forest legislation and governance, through instruments that may include, among other things: the effective use of CITES with respect to endangered timber species: certification schemes for forest products extracted sustainably, and regional or bilateral Forest Law Enforcement, Governance and Trade voluntary partnership agreements (hereinafter FLEGT).\"\n\nThus, the trafficking of sensitive or endangered forest products is covertly permitted, trade in which should not occur under any circumstances, in strict adherence to the environmental provisions in force in the country, as well as to the International Human Rights Instruments applicable in the Republic. It is clear that the regulations of this agreement are somewhat complex and constitute a perverse mechanism that covers up situations in which the guarantee provided in Article 50 of the Constitution is clearly violated. In relation to the preceding argument, the following statement by the Constitutional Chamber in Vote No. 1304-93 is relevant:\n\n\"All of human life occurs in an inevitable relationship with its environment, especially with the improvement of the quality of life, which is the central objective that development needs, but this must be in relation to the environment in such a way that it is harmonious and sustainable.\nThe environment must be understood as a potential for development to be used appropriately, and action must be taken in an integrated manner in its natural, sociocultural, technological, and political relationships, since, otherwise, its productivity is degraded for the present and the future, and the heritage of future generations may be put at risk. The origins of environmental problems are complex and correspond to an articulation of natural and social processes within the framework of the style of socioeconomic development adopted by the country. For example, environmental problems occur when the modalities of exploitation of natural resources give rise to a degradation of ecosystems that exceeds their regeneration capacity, which leads to broad sectors of the population being harmed and generates a high environmental and social cost that results in a deterioration of the quality of life; precisely because the primary objective of the use and protection of the environment is to obtain development and evolution favorable to the human being. Environmental quality is a fundamental parameter of that quality of life..., but more important than that is to understand that although man has the right to use the environment for his own development, he also has the duty to protect and preserve it for the use of present and future generations.\"\n\nIn this way, all infra-constitutional norms must be interpreted and applied in accordance with the Constitution, the precedents, and the jurisprudence of the Constitutional Chamber (judgment 1185-95, 1893-95, 6192-95, 1056-96, 4256-99, 1999-07181, 07371-99, 2000-08193, and 2002-01228). For this reason, the present mandatory constitutional consultation must be answered to the effect that what is provided for in Article 289 of the Treaty violates Constitutional Law.\n\nC) Regarding the unconstitutionality of the mechanism provided for in the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other, with respect to dispute settlement.\nIt is considered that Article 308 and the following articles of the referred Association Agreement are unconstitutional, insofar as they obligate the Costa Rican State to resolve its disputes with respect to another non-Central American Party to the Treaty regarding the interpretation or application of Part IV of the Agreement, firstly, through the Consultations mechanism (see Article 310 thereof), as well as before the Special Panel (see Article 311 ibidem), violating the sovereign power of the State to decide whether or not to attend, and what matters it will submit to these processes proposed by a Party to the Agreement. What these provisions mean is that the Costa Rican State is giving a kind of prior, generic consent for all cases presented to it; evidently, this would be an unconstitutional provision, basically because these procedures, to be such, must be absolutely voluntary and it cannot be interpreted that this willingness is established once and for all, but rather must be manifested in each specific case, especially taking into account that there are certain matters that – by their nature – cannot be the subject of these dispute settlement processes, as would be the exercise of certain public powers. In the specific case, it is clear that the airing of the matter before a Special Panel constitutes submitting the dispute mandatory to an arbitration process. It should be taken into account that the very jurisprudence of this Constitutional Court has determined that Article 43 of the Political Constitution establishes that every person has the right to terminate their disputes, of a patrimonial nature, by means of arbitrators; and that the exercise of such a right is strictly voluntary since it requires a meeting of the minds between the parties in conflict. As this Chamber has rightly pointed out on a previous occasion:\n\n\"(...) in parallel to the right that individuals have to resort to the Courts of Justice to obtain a 'fulfilled' pronouncement, that is to say, correct, useful, the constituent provided in Article 43 'the right' of every person to resort, of course, voluntarily, to the arbitral procedure to elucidate their patrimonial differences. The use of this alternative route supposes a meeting of the minds between the parties. (...)\" (Judgment No. 2307-95, of 4 p.m. on May 9, 1995).\n\nFrom the foregoing, it follows that the essence of arbitration lies in the autonomy of the will of the parties. Indeed, it is the parties in conflict who must select both the arbitrators (in this case, the members of the Special Panel) and the procedure within which those arbitrators will be subject to their action and the effects that the final resolution will have. Thus then, arbitration is an alternative dispute resolution method (resolución alternativa de conflictos), with constitutional character, but for it to be such it must be voluntary (resolution number 2005-02995 of two forty-five p.m. on March sixteen, two thousand five). To the extent that an arbitration is established on an obligatory basis (or with prior, generic, and unexceptional consent), this figure would be denatured, and therefore, violating, in addition to Article 43 of the Constitution, the principle of national sovereignty according to which, the government – who acts as the representative of the people – has the right to decide, by itself, which controversies are resolved through an arbitral process (that is, through the use of the Special Panel figure) and which are not. A question to be determined on a case by case (casuísticamente) basis, which prevents a kind of consent given in advance in a generic manner for all types of controversies. It is, for this reason, that the mechanism provided for from Article 308 and following of the Association Agreement with respect to the dispute settlement mechanism is unconstitutional.\n\nD) Regarding the reference to the Central American Court of Justice as an organ of Central American integration, despite the fact that the Republic of Costa Rica has at no time admitted the jurisdiction or the competence of that Jurisdictional Body:\nFinally, the preamble of the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other, is unconstitutional, insofar as it literally provides: \"RECOGNIZING the progress achieved in the Central American economic integration process, such as the ratification of the Framework Convention for the strengthening of the Central American Customs Union and the Treaty on Investment and Trade in Services, as well as the application of a jurisdictional mechanism that guarantees compliance with regional economic legislation throughout the Central American region\", insofar as it constitutes a direct, explicit, and unequivocal reference to the Central American Court of Justice, which is the Supranational Jurisdictional Body of the Central American Integration System and is responsible for ensuring the interpretation and application of Central American Community Law, whose jurisdiction and competence, however, has not yet been recognized by the Republic of Costa Rica. For this reason, and given that our country has not yet endorsed the Jurisdiction of that Court, any explicit reference made to it in an international treaty approved by the country is unconstitutional, because it evades the scopes of Articles 7 and 121, subsection 4) of the Fundamental Text.\n\nE) Regarding the violation of the Constitution by the progressive liberalization clause for the establishment and trade of services:\nFor the same reasons indicated previously, the progressive liberalization clause for the establishment and trade of services provided in Article 159 of the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other, is contrary to Article 50 of the Political Constitution and the scopes of the Social and Democratic State under the Rule of Law (Estado Social y Democrático de Derecho), insofar as it leaves aside state policies that seek an equitable distribution of wealth among the less favored sectors. Based on the foregoing, the consultation formulated must be answered to the effect that what is provided in Article 159 of the Agreement is unconstitutional.\n\nIII) IN CONCLUSION.-\nIn accordance with the foregoing, the undersigned Magistrates dissent and answer the consultation formulated to the effect that the present bill to approve the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other, legislative file No. 18,563, contains procedural and substantive defects.\n\nGilbert Armijo S. Fernando Cruz C.\n\nDissenting vote of Magistrate Armijo Sancho.\nRegarding the violation of the principle of publicity as the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, on the other, was not published in its entirety.\nOn this matter, the undersigned Magistrate considers that the fact that the present Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, and its annexes, was not published in its entirety constitutes a gross violation of the principle of publicity, as well as of legislative due process. Indeed, upon reviewing the publication made of the bill in the Official Gazette La Gaceta No. 220 of November 14, 2012, Scope No. 180 (see website: http://www.gaceta.go.cr/pub/2012/11/14/ALCA180-2_14_11_2012.pdf, consulted on June 19, 2013), 2 folios corresponding to the First Annex are missing. In this line of thought, upon reviewing the text of the Agreement in La Gaceta, the absence in the publication of the page visible at folio 1006 of the certified copy (EU/CENTR-AM/Annex I/es 544), as well as folio 1572, is verified, which correspond to Annex I of the Agreement, which deals with the elimination of customs tariffs on the occasion of the Agreement. For this reason, and given that the consulted bill was not published in its entirety, the undersigned Magistrate considers that this constitutes a substantial defect in the legislative procedure, which must be pointed out on this occasion. Consequently, the consultation formulated must be answered to the effect that the approval procedure for the Agreement establishing an Association between Central America, on one hand, and the European Union and its Member States, is unconstitutional.\n\nGilbert Armijo S.\n\n13-006008-0007-CO"
}