Constitutionality of Isla San Lucas National ParkConstitucionalidad del Parque Nacional Isla San Lucas

Res: 2023-012817 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at fourteen hours and forty minutes on treinta y uno de mayo de dos mil veintitrés.

Constitutional challenge (acción de inconstitucionalidad) being processed under expediente nro. 21-005756-0007-CO, filed by ANAIS VILLALOBOS KONG and ÁLVARO SAGOT RODRÍGUEZ, holders, respectively, of identity cards nros. 105390615 and 203650227; against the entirety of the Ley de Creación del Parque Nacional Isla San Lucas, ley nro. 9892 del 24 de agosto de 2020 and, specifically, articles nros. 1, 2, 3 final paragraph, 5, 6, 7, 9 subsection d), 10, 14 subsection g), 15, 16, 17 and 18, to which challenge nro. 21-006852-0007-CO, brought by GUSTAVO FLORES YZAGUIRRE, holder of identity card nro. 107060843, was consolidated.

Findings:

1. 1In a written submission received by the Chamber on 23 de marzo de 2021, the petitioning party files a constitutional challenge against the entirety of the Ley de Creación del Parque Nacional Isla San Lucas, ley nro. 9892 del 24 de agosto de 2020, for violation of the principles of non-regression (no regresión), objective substantiation (objetivación), precaution (precautorio), and progressivity (progresividad), as well as the right to a healthy and ecologically balanced environment, because, without technical justification, the area of a protected wildlife area (área silvestre protegida, ASP) was reduced and a type of area was created for purposes different from those that must exist within a national park. They state: “We believe that we have direct standing (legitimación) to bring this constitutional challenge because diffuse environmental interests (intereses difusos ambientales) are involved in this matter, insofar as we allege, among other things, an unjustified and unstudied reduction of an ASP.Furthermore, this is because a change in management category (cambio de categoría de manejo) occurred without prior studies and assessments to support the legislative decision-making, in addition to the fact that now, under this law, land-use changes (cambios de uso de suelo) are even being permitted within an (sic) area in a national park, in violation (sic) of settled constitutional case law, which in turn is also contrary to constitutional and treaty provisions. As will be seen in our analysis, this law permits a national park to be developed with commercial and tourism-related works and docking facilities, all of which unconstitutionally affect both marine and terrestrial biodiversity. All of the foregoing places our natural heritage at risk and could even deprive generations not yet born of the future enjoyment of an ASP. Our basis lies in the provisions of sections 7, 21, 50 and 89 of the Constitution and article 75, second paragraph, of the Ley de la Jurisdicción Constitucional.The foregoing is further developed by the arguments set out below. CHALLENGED PROVISION “CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS Ley No. 9892 de 24 de agosto de 2020 Published in Alcance No. 248 of La Gaceta No. 233 de 21 de setiembre de 2020 THE LEGISLATIVE ASSEMBLY OF THE REPUBLIC OF COSTA RICA DECREES: CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS (…) GROUNDS FOR THE CONSTITUTIONAL CHALLENGE FIRST: REDUCTION OF THE PROTECTED WILDLIFE AREA WITHOUT JUSTIFICATION The law now being challenged establishes in section three the 3 fragmented boundaries of the new national park as follows: “Article 3.- Boundaries. Parque Nacional Isla San Lucas shall consist of a terrestrial portion and a coastal marine area. The terrestrial portion shall comprise the insular part of Isla San Lucas, located in the 0002) of Nicoya, on the Instituto Geográfico Nacional map sheet entitled Golfo. Edition 3-IGNCR, at north latitude 9 ° 55' 55 " - 9 57' 20" and west longitude 84°53 ' 23 ", with an area of four hundred sixty-two hectares (462 ha).The coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m) …” (Emphasis added) As may be observed, it states that the marine section shall consist of the area surrounding the island to a depth of ONLY UP TO THREE METERS. However, this entailed a reduction of the marine area that has no basis whatsoever in science or technical expertise, because this same Chamber, in constitutional judgment N° 2010-01 3090, had provided that the marine area of Isla San Lucas would encompass the ENTIRE marine sector, to a depth OF SIX METERS. The aforementioned judgment stated, insofar as relevant, in its Por Tanto: “The action is declared partially GRANTED. Consequently, article 1° of Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) de 25 de enero de 2008, published in Alcance 10 of La Gaceta No. 28 del 8 de febrero de 2008, is annulled as unconstitutional, insofar as it modifies only subsection A. of article I of Decreto Ejecutivo No. 33327, MIMAE, except for the addition of the portion of water added to Refugio Nacional de Vida Silvestre Isla San Lucas and section B, which remain in force” (Emphasis added) And section B of that decree stated: “B.A coastal marine area comprising the waters surrounding Isla San Lucas to a depth of 6 m” (Emphasis added) The foregoing entails, in principle, a discrepancy of three meters between the new law and what previously existed, which reduces the ASP without any justification, and this is unconstitutional. The added section B also stated in the decree: “A portion of water described by the following Costa Rica Lambert North coordinates is hereby added to Refugio Nacional de Vida Silvestre Isla San Lucas:

Vertex X Coordinate Y Coordinate Condition 1 434875 213534 Vertex I, the starting point at the boundary of the six-meter depth contour line, the reference point where the boundary of the expansion begins in the water, passing through vertices 2 through 8 and including the Pan de Azúcar islet.

2 434894 213171 3 434948 213118 4 435095 213070 5 436228 212316 6 437426 211924 7 437829 211853 8 439109 213551 From Vertex 9 to Vertex 1, which is the starting point, the boundary is defined along the six-meter depth contour line, passing through vertices 9 through 14 and creating an additional area of 210 hectares.

9 438380 212952 10 437747 2 I 2726 11 437155 212649 12 436706 212792 13 435921 212855 14 435790 2 I 3026 …” (Emphasis added) As can be seen, we are speaking, without fear of being mistaken, of a boundary in the area that belonged to the protected wildlife area (área silvestre protegida, ASP) extending to a depth of up to 6 meters. The constitutional ruling was also clear in stating: “The action is declared partially WITH MERIT. Consequently, Article 1 of Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) is annulled as unconstitutional... except for the addition of the portion of water added to the Refugio Nacional de Vida Silvestre Isla San Lucas” (…) Therefore, that section added to the Refugio was also placed at risk, and we request that it be so declared. It should be noted that there is no technical or scientific justification for the foregoing, and this violates the principle of scientific protection (principio de tutela científica), insofar as there was a reduction without any supporting argument or study.

In summary: in view of all the foregoing, when Article 3 of Ley 9892 states that the marine boundary is set at a depth of up to three meters, an area reduction occurred that never had any basis (sic) validating why that legislative decision was made; this is regressive and violates constitutional provisions 50 and 89, insofar as biodiversity and the coastal marine landscape are left unprotected. Since it is clear that protected wetlands (humedales protegidos) exist on Isla San Lucas, the foregoing area reduction even violates constitutional provisions 7 and 50, in connection with the ratified Convention on the Conservation of Wetlands of International Importance and Sites for Migratory Birds (RAMSAR), insofar as provision I thereof establishes that wetlands extend to a depth of 6 meters at low tide. (…) We also emphasize the reference to low tide, because the new law speaks only of protecting an area to a depth of up to three meters, but NOTHING was stated as to whether the 3 meters begin to be measured at low tide or high tide; that fact alone is fundamental to this action because it determines greater or lesser protection of areas and the conflict with a provision contained in a ratified international instrument.

Furthermore, those wetlands of Isla San Lucas had already been recognized by a regulatory provision, so there is no justification for what the legislators did, followed by the Poder Ejecutivo itself, which could have vetoed the law but did not. We therefore argue that the entire law must be declared unconstitutional, because reducing the marine area in provision 3 alters the entire body of law systemically. Indeed, the rationale for that depth of 6 meters at low tide is found not only in the cited constitutional ruling, but also in the RAMSAR Convention; consequently, the intentional and bad-faith excision of wetland areas demonstrates clear unconstitutionality, and we request a ruling to that effect. Also note the connection with the significance and recognition of the San Lucas wetlands: even the “recitals” (considerandos) of repealed Decreto No 33327 concerning the island’s Refugio Nacional de Vida Silvestre stated, in defining its boundaries, that it encompassed the Isla San Lucas area and the coastal marine area, and further declared to be in the public interest any activity or project aimed at restoring and preserving the water quality and natural resources of Estero Puntarenas, when it stated: (…) In other words, the adverse impact caused by provisions 1 and, especially, Article 3 of the law could alter vital cycles and valuable ecosystems that function ecologically together with the wetlands of Estero de Puntarenas; apparently, however, none of this carried any weight with the legislators who created the new body of law.

In addition to the foregoing, it should be borne in mind that, by connection with constitutional provisions 50 and 89, consideration must be given to the provision contained in Article 40 of the Organic Environmental Law (Ley Orgánica del Ambiente), which refers to a depth of six meters at low tide for wetlands, and to Article 41, which establishes that even wetlands not protected or declared as such by law receive special protection because they are of environmental public interest. We therefore consider that the law is clearly unconstitutional, warranting a declaration of unconstitutionality not only of the final paragraph of provision 3 of this challenged new body of law, but of the entire text of Ley 9892, because the error in its boundaries encompasses all related articles, given that there can be no protection if dozens of marine hectares rich in biodiversity that were previously protected are excluded.

The error cannot be remedied by an interpretive judgment, because this is an egregious instance of ecological deprivation of protection. Along the same lines, we must note a violation of constitutional provisions 7, 50, and 89, in connection with the Convention for the Conservation of Biodiversity and Protection of Priority Wilderness Areas in Central America, approved by Ley No. 7433, which defines conservation as follows: “Preservation, maintenance, restoration, and sustainable use of the components of biodiversity,” because it is evident that excluding an area without justification leaves valuable ecosystems for birds and marine life unprotected within a protected wildlife area in Costa Rica. It should be noted that this affects different forms of life throughout the Gulf and, consequently, also affects a site regarded as a breeding ground for various marine species that reproduce in the area.

Harm to that breeding ground also has adverse repercussions for artisanal fishers and their families today and, consequently, for future generations. It is evident that reducing the area also violates the Convention on Biological Diversity (Ley No. 7416 de 30 de junio de 1994), in connection with the State’s duty to manage resources important for the conservation of biological diversity and to protect natural ecosystems and habitats, as developed in Article 8 (in-situ conservation), subsections d) and e), insofar as protected areas are deprived of protection through the described reduction, for which it is unknown what criterion prevailed, and there is also great uncertainty regarding the action’s overall adverse impact on the area. There is also a failure to comply with provision 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador” (…) Ley 9892 has instead resulted in the deprivation of protection of an ASP through this reduction, without even contemplating that any measurement of the ASP had to begin at low tide.

The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Ley 3763) states unequivocally: “ARTICLE III. The Contracting Governments agree that the boundaries of national parks shall not be altered, nor shall any portion thereof be transferred, except by action of the competent legislative authority.” Although in this case it was the Asamblea Legislativa that modified and delimited the new Park, this does not mean that it provided any justification for reducing the protected wildlife area; this must be made entirely clear, because it warrants a declaration of unconstitutionality for violation of the principles of proportionality and reasonableness (principios de proporcionalidad y razonabilidad). We also submit that the reduction of the protected wildlife area without studies or justification violated the precautionary principle (principio precautorio) and the principle of non-regression (principio de no regresión), because the legislators, and subsequently the Poder Ejecutivo, plainly relied solely on discretion to make the reduction, despite the existence of clear provisions and case law; this cannot be permitted, because it even undermines intragenerational and intergenerational protection (protección intra y extrageneracional), as we have stated.

Special mention must be made of the violation of Article 26 of the American Convention on Human Rights (Ley No. 4534), which provides: (…) This Authority must recognize that reducing the area of a protected wildlife area without any justification or studies openly violates the principle of progressivity (principio de progresividad) regarding the environmental protection to which sites such as national parks and their wetlands are entitled; the claim in this action must therefore unquestionably be upheld, and we request that this be expressly stated. We also wish to add that, together with the foregoing, consideration must be given to constitutional provision 7 and Advisory Opinion No. OC-23-17 of the Inter-American Court of Human Rights, which states: (…) We respectfully request that this Authority rule that this case involves a violation of the principle of lifetime tenure (principio de irreductibilidad) of PROTECTED WILDLIFE AREAS (AREAS (sic) SILVESTRES PROTEGIDAS), because the Article 3 at issue provides that: “the coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m).” Note that the 6 meters provided for in constitutional ruling N° 2010-013099 were disregarded, in addition to everything stated supra that is prescribed by the body of treaty law (bloque de convencionalidad), as well as the provisions of domestic law connected with constitutional provisions 50 and 89.

In fact, Decreto Ejecutivo “N° 34282, which was declared partially unconstitutional, even included the Pan de Azúcar islet as part of the Refugio Nacional de Vida Silvestre Isla San Lucas; however, we do not now know what became of that section because the law was silent, and it must therefore be deemed that this portion was also excluded. Finally, we request that provision 35 of the Ley Orgánica del Ambiente be deemed violated; by connection, it is linked to constitutional provisions 50 and 89, insofar as the reduction of the ASP violated the objectives of every protected wildlife area because it leaves unprotected a very large section that is important due to the biodiversity contained therein, which would be left in the hands of irresponsible fishers and persons who will face no limits on engaging in conduct contrary to its protection. Regarding reductions of PROTECTED WILDLIFE AREAS (AREAS (sic) SILVESTRES PROTEGIDAS) and technical studies, this Chamber has held: (…) SECOND: CHANGE IN MANAGEMENT CATEGORY AND INCLUSION OF A TOURISM AREA WITHOUT STUDIES.

This section presents two situations unsupported by studies: first, the management category (categoría de manejo) was changed without studies; second, rather than improving the situation, that change in category harms the ASP because it added a “commercial tourism” use that is presented as protective by attaching the word “sustainable” to tourism, although the entire change conceals an underlying commercial purpose where no such option previously existed, as we proceed to explain. By way of example, we emphasize that Article 2 of the law even declares sustainable tourism development to be of national interest and a high priority, illustrating our point. Indeed, the word “sustainable” is used 7 times to create this supposedly “protective” aura. Note that, until the enactment of Ley No. 9892 del 24 de agosto de 2020, Isla San Lucas was a Refugio Nacional de Vida Silvestre called Refugio Nacional de Vida Silvestre Isla San Lucas.

Changing the management category required the necessary studies to justify why creating a National Park was the best option, but no such scientific assessment ever existed in the expediente before the Asamblea Legislativa. Just as studies are required to reduce a PROTECTED WILDLIFE AREA (AREA (sic) SILVESTRE PROTEGIDA), studies must also exist to validate a change to a category such as National Park; as we have stated, however, no such studies exist in the legislative expediente in this case.

That is, in addition to the change in management category (categoría de manejo) without studies, which we consider unconstitutional, the most serious aspect of this situation is that you will never find a scientific and technical justification for adding commercial and tourism use to the new national park. It is asserted that we are facing a serious situation insofar as that use, for commercial and tourism purposes, is unsupported and lacks any foundation, and is therefore unconstitutional. In any event, if you read the challenged law, you will find that its intent is to turn this protected wildlife area (Área Silvestre Protegida, ASP) into a site with “commercial and tourism” uses disguised under the concept of SUSTAINABLE TOURISM USE (APROVECHAMIENTO TURISTICO SOSTENIBLE) (…) This section 6 has four descriptive parts or subsections: Regarding part 1), we add that it refers to a site with historical features because buildings from the former prison remain there, and it provides the georeferences (sic), but where are the archaeological studies justifying all of the foregoing?

Why was the area not larger? At least within the legislative record, there is nothing, and that deficiency inherently entails a violation of the principle of scientific protection (principio de tutela científica). Pottery fragments, burials, and indigenous stonework have been found on the island, and it is therefore also appropriate to ask: Why, if other areas contain archaeological remains of Indigenous cultures, is only one of the sites specified? Who excluded other sites of historical and archaeological value on the island, and why (sic)? In fact, only the most recent site in historical terms—the prison—was georeferenced (sic). Where is the updated report from the Museo Nacional de Costa Rica? Everything here raises doubts that require a finding of unconstitutionality. To date, eight archaeological sites containing duly marked remains of Indigenous activity are known throughout Isla San Lucas, and this makes the matter highly sensitive, because it is unjustified to provide georeferences (sic) only for the prison area when, as stated, there are other important sites.

Part b) refers to a “recreation area” called playa El Coco and demarcates it, but that demarcation, even if it includes georeferences (sic), does not in itself constitute a study scientifically and technically justifying why it was made, and therein lies another instance of unconstitutionality. It should be noted that there ought to have been a study of terrestrial and coastal biodiversity explaining why that sector, rather than another, was selected; but as we have said, there is nothing in the record, and that uncertainty leads us to conclude that a sector of playa El Coco was chosen purely as a matter of discretion so that it could be designated for that use WITHIN A NATIONAL PARK AS A RECREATION AREA, which must not be permitted. It should be known that the prison cemetery occupies a section of playa Cocos and that an exuberant evergreen forest (bosque sempervirente) also exists on that beach, together with a large section of deciduous forest (bosque caducifolio) extending as far as the high-water mark allows; consequently, a tourism project in 2021 entails the removal of trees (…) In other words, forest regeneration has overtaken playa Cocos, yet the legislators decided that this beach should be used for recreation without examining the impacts or conducting studies.

Part c) lists coordinates for constructing trails, but the biological implications and environmental impact of those trails likewise have no scientific justification. Finally, part d) is highly dangerous because it refers to a section of water, or “water sector”; but if we add that section 3 of the law reduced the marine section from 6 to 3 meters deep, we face immense scientific uncertainty due to the lack of studies, and we ask that this be so declared. Furthermore, that “water section” would be confined to the stated georeferences (sic), but there is no basis for its existence; and if we add that docks and berthing facilities will be located there, as provided by Article 16, we reach a critical point involving potential adverse environmental impacts that were never justified in advance, as they should have been. Note that section 16 refers to the possibility of constructing several docks and berthing facilities at a location where that option did not previously exist when the ASP was a wildlife refuge (refugio de vida silvestre).

For the foregoing reasons, we find deficiencies leading to the conclusion that Articles 3, last paragraph, 6, and 16 of Law 9892 are wholly unconstitutional because no studies exist to justify what they prescribe. In conclusion, we add that the preceding articles also clearly establish a differentiated and demarcated area within Law 9892 itself. That area, where the four parts are located, is deemed an area of “impact” (afectación) with questionable features that were never justified in their entirety or independently, as we have explained; this entails unconstitutionality due to violation of the principle of objective substantiation (principio de objetivación) and because the very word impact is incompatible with what should exist and be permitted within a national park. The legislators had no authority to tamper with the legal system (Ordenamiento Jurídico) as they did, because doing so exceeds their powers.

Note, for example, that the types of “impacts” contemplated in parts b) and d), quite apart from the lack of studies, directly conflict with Article 8, subsection 15, of the Ley del Servicio de Parques Nacionales, in conjunction with Article 12 of that same body of law; consequently, sections 1, 3 in its last paragraph, 6, and 16 of Law 9892 suffer from serious constitutional defects. Let us recall that in national parks it is NOT permissible to grant concessions outside facilities serving the park itself; only ecotourism, research, workshops, and, potentially, the use of water resources (aprovechamiento del recurso hídrico) are permitted, and nothing more. It would never be permissible to allow commercial purposes involving docks, berthing facilities, and so forth, which the Board administering that ASP might authorize. We will elaborate on this below. THIRD: COMMERCIAL PURPOSES DISGUISED AS SUSTAINABLE PURPOSES IN THE FRAGMENTATION OF THE ASP.

(…) A wildlife refuge has been transformed into a park with a tourism zone in which docks, berthing facilities, food services, and other maritime facilities will be allowed, all on a numerus (sic) apertus basis, as though it were a kind of amusement park, disregarding the rationale and objectives of these ASPs. All of the foregoing would cause noise pollution in the marine ecosystem from the engines of the motorboats, jet skis, and boats arriving at the site; light pollution; pollution from ships’ oils and fuels; impacts on the seabed in wetlands; sedimentation; etc. All of the foregoing directly conflicts with Article III of the Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, which established an international obligation for Costa Rica to devote parks to the protection and restoration of their areas and prohibited commercial activities from being established there.

The intent of that international instrument is to protect ecosystems, not to offer them through concessions to the highest bidder as spaces for tourism and commercial activities unrelated to nonessential services; that change and new “sustainable tourism” use is plainly unconstitutional. To further illustrate commercial use within this ASP, we must note that section 14, subsection g), of Law 9892 establishes the following as one of the duties and powers of the Trust Commission that will administer the Park: “g) Approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and nonessential services, in order to maximize the use of the Tourism Zone and visitors’ enjoyment (…)” Section 9 of this disastrous new body of law sets out the duties of the Board of Directors that will administer the Park: “Article 9.- (Duties and powers. The Board of Directors of Parque Nacional Isla San Lucas shall have the following powers: ... d) Define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island.” But we reiterate that, under Article III of the Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, any commercial use within a Park is entirely prohibited.

See also Article 12 of the Ley del Servicio de Parques Nacionales, which prohibits the construction of any type of facility other than those used for the Park. Notwithstanding the foregoing, however, as you can read, the word “commercial” appears in several parts of the law as a permitted activity. Yet if the Convention, as a legal norm, prohibits exploiting a park for commercial purposes, how is it that such activities are now being allowed here? Parque Nacional Isla San Lucas should exist to protect the island’s rich biodiversity and its exuberant landscapes; instead, the evident aim is once again to enable profit-making through concessions. Bear in mind that in the past there was even greater brazenness in the attempt to build hotels and casinos, but now they are trying to disguise some of the wording so as to exploit the island commercially once again. Curiously, the composition of the Board of Directors does not include anyone from the SISTEMA NACIONAL DE AREAS (sic) DE CONSERVACIÓN (SÍNAC), which is legally responsible for control and protection work in the country’s various ASPs.

Nor will you notice any representative of environmental groups or of the Consejo Regional de Áreas de Conservación, but there will be a member of the Cámara de Turismo de Puntarenas. The reason for this is clear: it is none other than to pursue potential commercial purposes, which take precedence over the protection of biodiversity (…) In other words, National Parks are sites designated “…for the protection and conservation of natural scenic beauty and nationally significant flora and fauna...” where public visitation is permitted; but that does not, in itself, authorize the construction of several docks or berthing facilities. That is where the situation becomes even more complicated, because it is clear that this new Law could cause damage to marine wetland ecosystems and could also lead to tree felling and the destruction of biodiversity. None of this was evaluated through studies; instead, thought was given only to changing the management category and creating a “tourism zone,” without considering the adverse impacts, thereby violating both the precautionary principle (principio precautorio) and the principle of objective substantiation.

We therefore request that not only section 3, last paragraph, and section 16 of Law 9892, which establish the category change and the division into zones, be declared unconstitutional, but that the entire law be so declared, since those articles are structural components of the challenged legislation. As we have stated, the Ley del Servicio de Parques Nacionales itself, which is connected to Articles 50 and 89 of the Constitution, does NOT provide anywhere that National Parks may include (commercial) tourism zones of the kind contemplated by section 3, last paragraph; section 9, subsection d); section 14, subsection g); and section 16 of Law 9892. We therefore find another basis for the claimed unconstitutionality.

Let us bear very much in mind that section 8 of the Ley del Servicio de Parques Nacionales prohibits logging (subsection 1), causing any type of pollution (subsection II), and engaging in any type of commercial activity (subsection 15). It should now be noted that, in 2007, the Universidad Nacional published a study by the Instituto Internacional de Conservación y Manejo de Vida Silvestre (ICOMVIS-UNA). It demonstrated the extensive and valuable biodiversity of Isla San Lucas. The study emphasized the presence of several mangroves inhabited by 6 species of mollusks; 63 species of coastal marine fish, distributed among 29 families; 17 species of reptiles, including the becker (Boa constrictor), guardacaminos (Conophis lineatus), and ciega (Loxocemus bicolor); and 40 species of birds, 9 migratory and 31 resident, such as the fragata (Fragata magnificens), pelicano (Pelecanus occidentales), tortolita colilarga (Columbina inca), and gallinazo (Coragyps an-ams).

White-tailed deer and congos were also described. The study indicates that the greatest number of species is found near the infrastructure formerly occupied by the penitentiary, because it offers a greater variety of resources, such as food, water, and shelter, which are used by the various species. But it turns out that this will be a tourist area, as the new law states, and so what will be the impact on this biodiversity? Nothing is known about that. The study goes on to state that more than 90 plant species were found, all native to the area and distributed among 6 types of forest cover (cobertura boscosa), including evergreen and deciduous forest. At least 8 species of bats were also found, most of them near the former prison, where groups comprising several species sleep. They feed mostly on fruit, an important function because they transport seeds to different locations and thereby contribute to the recovery of the Island’s original vegetation.

It should also be noted that the “Baseline Study of the Flora and Fauna of RNVS Isla San Lucas, Costa Rica,” prepared, as we stated, by the aforementioned Instituto Internacional en Conservación y Manejo de Vida Silvestre de la Universidad Nacional, determined that forest cover extends over 98% of the Island’s land and that, because of this condition, those lands are inalienable and form part of the State Natural Heritage (Patrimonio Natural del Estado). (See Table 1). And here we ask: how many trees will be felled to create that tourist area, given the current forest cover? There is no answer. Note that forest cover has been increasing, and anyone who visits the island will observe that now, in 2021, there is forest over practically the entire island (…) These authors even provide a map of forest regeneration on the island confirming that practically the entire island has forest cover. They also illustrate the expansion of the wetland over the years.

(See annex). Yet it appears that none of that forest was ever a concern, either for the Executive Branch or for the Legislative Branch, and this therefore justifies a declaration of unconstitutionality, given that there are no studies supporting what was authorized. Accordingly, by also authorizing the construction of docks and other types of infrastructure in a TOURIST AREA, the entire rationale of protection existing in our State is changed, even though it is supported by duly ratified international conventions such as those cited above. This is why we insist that the change of category is unconstitutional, as is allowing a tourist area within a National Park with infrastructure that negatively affects marine and terrestrial ecosystems. It is clear that commercial uses were authorized unconstitutionally, because they are prohibited both by domestic provisions and by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, and therefore the entire Law must be declared unconstitutional.

Our State cannot permit the opening of a national park to a tourist area in which commercial use is allowed and where achieving that use necessarily entails adverse impacts from marine pollution caused by oils and fuels, noise, infrastructure, forest clearing—even if only a few trees are cut—and so forth. We therefore request that the entire law be declared unconstitutional because, as we stated at the outset, its purpose is to promote those commercial objectives by introducing port infrastructure within park lands, which ultimately entails an unconstitutional land-use change (cambio de uso del suelo) within a protected wildlife area (Área Silvestre Protegida, ASP) (…) That site subject to “differentiated management” implicitly entails a land-use change, as we have stated, with a negative impact on an ecosystem that has been regenerating for decades since the prison was closed, but none of this was assessed, and this implies, to a certain extent, another concealed reduction of the ASP; we therefore request that it be so declared (…) in this case, there should have been studies justifying the existence of the TOURIST AREA within the park, but because there are none, section 3 of Law 9892 is unconstitutional (…) For all these reasons, the proposed approval of the creation of a tourist area (Article 3) embedded within Parque Nacional Isla San Lucas must be deemed an unconstitutional provision because there are NO scientific and technical studies justifying that subdivision (fraccionamiento) and, in any event, because it constitutes a USE THAT IS ENTIRELY INCOMPATIBLE with a National Park.

Finally, we have mentioned on several occasions the violation of section 89 of the Constitution, and we have done so because Law 9892 would alter the natural landscape existing on the island and in the marine area surrounding it to a depth of 6 meters after low tide, and we therefore request that this be taken into consideration. FOURTH: REGARDING THE BOARD OF DIRECTORS THAT WILL ADMINISTER THE PARK Article 1 of the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere states the following regarding National Parks: (…) On the other hand, when Article I of the Convention refers to “official supervision,” it is clear that we must understand that Law 9892 unconstitutionally excluded the SINAC representative from the board of directors established in section 10. Pursuant to section 22 et seq. and related provisions of the Ley de la Biodiversidad, which are connected with section 50 of the Constitution, that representative would have to be there as a member of that collegial body, because SINAC is the competent authority in Costa Rica responsible for ensuring the implementation of control and protection measures within ASPs.

In other words, it is not enough merely to state that the MINAE minister will sit on that board. Nor is the error remedied by stating in section 15 of the new law that SINAC park rangers will be present, because management and policy-making functions must be exercised by the board of directors, whereas Article 15 refers only to field duties. But as can be seen in section 10 of Law 9892, the official representative was denied any participation in this national park. It is clear that section 10 of Law 9892 is unconstitutional because, without explanation, it omitted the SINAC director from the administrative board that will administer Parque Nacional Isla San Lucas. Furthermore, and along the same lines, Article 10 also failed to provide for the appointment to the board of a representative of the Consejo Regional de Áreas de Conservación, as contemplated by section 23 of the Ley de la Biodiversidad, which is connected with section 50 of the Constitution.

There is no justification for excluding civil society participants in environmental protection and oversight from that board of directors, particularly when, under a special law, these persons play a fundamental role in overseeing all ASPs in Costa Rica. We therefore consider that Article 10 of the aforementioned new law must be declared unconstitutional, because the legislators do not have legislative authority to make omissions contrary to express provisions, especially without explaining the reason for the omission (sic). Regarding that last deliberate exclusion from the board of directors that will administer this ASP, we must add that section 10 of the 1992 Rio Declaration itself states that the best way to manage environmental matters is by involving civil society. Accordingly, the situation here is contrary to what is required internationally, and although Rio Principle 10 is soft law, it forms part of a road map that has been violated, and we request that it be so declared, because the new law violates a normative requirement regarding what should occur in Costa Rica and thereby also violates the principle of progressive realization (principio de progresividad) set forth in Article 26 of the American Convention on Human Rights.

The exclusion of the head of SINAC and another representative from CORAC is contradictory, because those bodies are legally tasked with protecting biodiversity in ASPs through policies, and now, under Law 9892, it appears that a wholly sui generis national park has been created, without technical justification, in conflict with the Constitution and ratified conventions. FIFTH: INCORPORATION OF PRIVATE SECURITY OFFICERS INTO A NATIONAL PARK. We consider that section 15 of Law 9892 is constitutionally defective insofar as it authorizes private security personnel to perform surveillance duties in the national park. This even threatens the national park’s finances, because it is not known where the funds to cover the salaries of those officers will come from. We believe that this surveillance work should be entrusted exclusively to SINAC park rangers, who have the knowledge, training, and sensitivity required to work within a park, unlike private security officers.

This new security force only creates an expense for the new ASP and could have negative consequences for the park; we therefore request that this provision also be declared unconstitutional. Our State created the position of park ranger to provide control and surveillance within ASPs, and therefore no technical or practical reason exists to justify creating another type of surveillance force within these sites. SIXTH: REGARDING CONCESSIONS AND AUTHORIZATION TO BUILD DOCKS AND LANDING FACILITIES IN NATIONAL PARKS We must be clear that concessions are NOT permitted in national parks; only training, ecotourism activities, research, telecommunications towers, and, potentially, the use of water resources are authorized pursuant to sections 18 and 18 bis of the Ley Forestal. Article 7 of Law 9892 would therefore be unconstitutional, because that new provision contemplates granting “concessions and permits for activities and facilities unrelated to the park service,” which ultimately amount—once again—to concealed authorization for commercial purposes other than the protection and safeguarding of sites afforded special protection because of their biodiversity and landscapes, in accordance with the objectives governing what is permitted in national parks and other ASPs.

We consider that permitting “concessions and permits for activities and facilities unrelated to the park service” constitutes an abuse of legislative administrative discretion (discrecionalidad administrativa legislativa), thereby violating transparency in public service. For this reason, section 7 of the challenged law is unconstitutional, because it violates section 50 of the Constitution, as well as Article 89 of the Constitution. Note the clear conflict with Article 12 of the Ley del Servicio de Parques Nacionales.

If we read provision 7, which addresses concessions and permits unrelated to park services, together with the commercial uses under provisions 9(d) and 14(g), the dangerous commercial meaning of the phrase “activities and facilities unrelated to park services” becomes clear. We believe that the foregoing establishes the unconstitutionality present in this case, since the law is pernicious in introducing changes that definitively enable commercial purposes within the park. Moreover, we note that the Ley de Concesión y Operación de Marinas y Operación Atracaderos de Marinas y Atracaderos Turísticos, in its first article, read in conjunction with provision 32 of the Ley Orgánica del Ambiente—which, by connection, are linked to constitutional provisions 50 and 89—establishes an express prohibition against constructing docks and moorings in national parks. Since these laws have not been amended, we find that the attempt to provide what is set forth in provision 16 of ley 9892 is clearly unconstitutional and constitutes regression (…) That is, if we are dealing with a law that creates a national park, as it indeed does, which is also surrounded by reefs (there are approximately 10 reefs) and numerous wetlands that, according to studies from 200€, represent 6.9 percent of the island’s territory, then the construction of docks and moorings is absolutely prohibited by an express provision.

Note that the provision of the Ley de Concesión y Operación de Marinas y Operación Atracaderos de Marinas y Atracaderos Turísticos unequivocally established the prohibition against authorizing tourist docks and moorings not only in national parks, but also in locations where coral reefs exist. Thus, if San Lucas is surrounded by coral reefs, as well as wetlands protected to a depth of 6 meters from low tide, provision 16 of the challenged law is absolutely unconstitutional because it permits infrastructure that, under an express provision, would be contrary to protection within a protected wildlife area (área silvestre protegida, ASP), and we request that it be so declared. The foregoing prohibition against constructing docks and moorings is also consistent with the provisions cited above from the Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, which requires protection and prohibits altering the nature of areas and/or assigning them commercial purposes within national parks.

Likewise, ley 9892 and its docks and moorings would violate the Convenio sobre la Diversidad Biológica, as developed in article 8 (in situ conservation), subsections d) and e), insofar as it expressly removes protection from a protected wildlife area classified as a national park. For all these reasons, provision 16—at least partially—of that challenged law violates the Constitución Política in its provisions 50 and 89, as well as several ratified international instruments (…)

SEVENTH: UNCERTAIN FUNDING As established by provision 17 of ley 9892, the funding is uncertain, since it merely states that the public sector could make donations, as could the private sector. As can be seen from that provision, the creation of the protected wildlife area creates legal uncertainty (inseguridad jurídica) with respect to the budget because the language used was extremely vague; therefore, in the absence of a budget, it must be declared unconstitutional. Provision 36 of the Ley Orgánica del Ambiente, which by connection we relate to constitutional provision 50 and which is applicable to this case, provides that when new areas are created, funding must be allocated for their protection and management. However, because the final portion of article 3 creates a tourist zone, it is clear that a budget for managing that section was never considered. From that perspective, the construction of the infrastructure mentioned in provision 16, such as docks or moorings, remains uncertain, and this budgetary deficiency shows that a park was established with financial problems, rendering provision 17 of ley 9892 unconstitutional.

All the foregoing is likewise applicable to the provisions of provision 15 concerning the creation of a privately funded police force without financing, whose legal nature would also be questionable. Note that a park with a “tourist zone” is being created without providing specific funding to develop everything required, and this is irresponsible because it leaves the matter to the goodwill of institutions and companies. Furthermore, if companies are to donate maintenance services and may even make investments, as provision 18 states, this may be because they probably seek commercial purposes through the exploitation of the national park. This is pernicious, since it leaves open an entire framework through which the purpose that must govern a national park may be distorted in the “sustainable tourism use” sector. Finally, note that provision 5 establishes the State’s obligation to restore the architectural heritage located on the island, but does not indicate specifically where the funds will come from (…)

We request (sic) that our petition be granted and that the entirety of the provision entitled Ley de creación del Parque Nacional Isla San Lucas No. 9892 be declared unconstitutional. We request a declaration that the law in question violates basic principles of environmental law, such as the precautionary principle (principio precautorio), the principle prohibiting the reduction of protected wildlife areas without prior studies, the principle of non-regression (principio de no regresión), the principle of progressivity (principio de progresividad), the principle of objectification or scientific protection (principio de objetivación o tutela científica), the principle (sic) of reasonableness, and the principle (sic) of proportionality. We request a declaration that the aforementioned law violates not only constitutional provisions such as article 50, which establishes the right to a healthy and ecologically balanced environment, and provision 89, insofar as it removes protection from the marine and terrestrial landscapes of isla San Lucas, but also duly ratified conventions.

We request a declaration that the principle of non-regression is violated insofar as the protected marine depth is reduced from six meters to only three meters without justification. The foregoing also violates article 26 of the Convención Americana sobre Derechos Humanos, which establishes the principle of progressivity that should guide our State. We request a declaration that it is clear that this new law pursues commercial purposes in order to exploit the biological and scenic wealth within a national park and that this violates domestic provisions and ratified conventions. We respectfully request consideration of each of the petitions made in discussing the constitutional violations.”

1. 2By a decision of the Presidency of the Chamber issued at 7:52 hours on 26 de marzo de 2021, the action of unconstitutionality (acción de inconstitucionalidad) filed by Anais Villalobos Kong and Álvaro Sagot Rodríguez, in their personal capacity, against the entirety of the Law Creating Parque Nacional Isla San Lucas, law no. 9892 of 24 de agosto de 2020, and specifically against Articles 1, 2, 3, final paragraph, 5, 6, 7, 9 subsection d), 10, 14 subsection g), 15, 16, 17 and 18, was admitted for consideration. In addition, the Attorney General of the Republic, the President of the Legislative Assembly, the Minister of Culture and Youth, the Minister of Environment and Energy, the Executive Director of the Sistema Nacional de Áreas de Conservación, and the Executive President of the Instituto Costarricense de Turismo were afforded an opportunity to be heard. It further ordered: “This action is admitted because it meets the requirements set forth in Articles 73 to 79 of the Ley de la Jurisdicción Constitucional.The applicants’ standing (legitimación) arises from Article 75, second paragraph, of the Ley de la Jurisdicción Constitucional, because they appear in defense of diffuse interests (intereses difusos) concerning a healthy environment and the protection of natural and archaeological heritage. Notice of the filing of the action shall be published three consecutive times in the Boletín Judicial. Legal effects of filing the action: The purpose of the publication provided for in Article 81 of the Ley de la Jurisdicción Constitucional is to notify the courts and the bodies that exhaust administrative remedies (agotan la vía administrativa) that the constitutional challenge has been filed, so that no final decision may be rendered, until the Chamber has ruled on the matter, in any proceedings or procedures in which the application of the law, decree, provision, agreement, or decision is at issue.Several rules may be derived from this statutory provision. The first, and perhaps the most important, is that filing an action of unconstitutionality does not suspend the general effectiveness and applicability of the provisions. The second is that only acts applying the challenged provisions are suspended when undertaken by judicial authorities in proceedings brought before them, or by administrative authorities in procedures intended to exhaust administrative remedies, but their general validity and application are not suspended. The third is that—in principle—in cases involving a direct action (as in the present action), filing the action does not have a suspensive effect (see vote No. 537-91 of the Constitutional Court).”
2. 3In a filing received by the Secretariat of the Chamber on 5 de abril de 2021, Mario Andrés Boza Loría, identity card 102970932, states his support for and agreement with the arguments raised in the action of unconstitutionality. He adds: “I also wish to add the following: 1. Governance by a Board of Directors. I consider the use of a Board of Directors to administer this protected wildlife area (área silvestre protegida, ASP) to be highly detrimental and inappropriate. The administration of an ASP is entrusted to a director, administrator, or superintendent, who reports to a superior—in our case, the director of the respective Área de Conservación—who, in turn, reports to the director of the Sistema Nacional de Áreas de Conservación and to the minister of the Ministerio de Ambiente y Energía (Minae). Having a Board of Directors make decisions and establish strategies and policies would create disorder that would be highly detrimental to the efficient administration, protection, and development of San Lucas and to the achievement of the objectives of this ASP.Consider some examples of the disorder that would arise: 1.1. Who appoints the director or administrator of San Lucas? (sic) The Board of Directors? (sic) The law says nothing in this regard. We would therefore have a Board of Directors making decisions while, separately, the officials identified above would also be making decisions, as is their responsibility, for our entire system of national parks and equivalent reserves. 1.2. Who coordinates the work of the park rangers? (sic) Whoever administers must also protect. In all our ASPs, park rangers report to the director of the Área de Conservación and are appointed by Minae. In the case of San Lucas, we would therefore have a Board of Directors legally responsible for ‘contributing to the environmental protection and conservation of the national park’ and ‘establishing protection guidelines,’ while the regular Minae authorities would be responsible for the work of the park rangers. 1.3.On this same issue, the law creates further disorder in Article 15 by providing that, in addition to the park rangers, the Board of Directors may hire whatever security it deems necessary. Once again, who would coordinate the work of this additional security? (sic) 1.4. Unnecessary duplication of functions. All the functions that the Board of Directors would perform for San Lucas are already performed by SINAC and the office of the minister for all ASPs. This includes defining strategies and policies; approving administrative structures and master or management plans; defining tourism and research activities; approving use permits and concessions; and addressing all matters related to trusts (fideicomisos). This law introduces a new administrative body that would cause disorder in a system that already operates for all ASPs. 2. Advisory board. I consider it appropriate to include the persons mentioned in Article 10 so that they may assist San Lucas, but they should be constituted as an advisory board, not as a board of directors. 3.Trust. Article 13 provides that the Board would use the ‘trust mechanism as an instrument for the administration, management, development, and maintenance of Parque Nacional Isla San Lucas....’ A trust performing administrative and development work is entirely inappropriate. Under Law 9892, these tasks would therefore fall to the Board of Directors, the trust, and Minae as well. This obviously increases the disorder established by this law. 4. Consequences of the foregoing. I believe that the harm caused to the sound administration of San Lucas as an ASP would result in a failure to comply with Article 89 of our Constitution insofar as it concerns the adequate protection of the natural beauty of this island and its historical heritage.”
3. 4In a filing added to the electronic case file on 8 de abril de 2021, Kerlyn Jiménez Araya, identity card 604820059, requested recognition as an active supporting intervenor (coadyuvante activa) in the constitutional action (acción de constitucionalidad), because protection areas or protected wildlife areas, as in the case of Parque Nacional Isla San Lucas, must not be reduced without prior studies. She considers that reducing the area in question exposes marine ecosystems to risks. She states that Article 3 of the challenged law leaves several hectares of the marine portion unprotected and created a special zone that should not exist.
4. 5In a filing added to the electronic case file on 8 de abril de 2021, Natalia Cordero Murillo, identity card 305460641, seeks active supporting intervention (coadyuvancia activa) on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
5. 6In a filing added to the electronic case file on 8 de abril de 2021, María Margarita Guzmán Vargas, identity card 116710433, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
6. 7In a filing added to the electronic case file on 8 de abril de 2021, Jackeline Villalobos Fernández, identity card 604740002, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
7. 8In a filing added to the electronic case file on 8 de abril de 2021, Josué González Prendas, identity card 208450880, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
8. 9In a filing added to the electronic case file on 8 de abril de 2021, Josué González Prendas, identity card 208450880, Maggui Prendas Salazar, identity card 108590442, Marcela Jiménez Murillo, identity card 205090536, Sergio González Jiménez, identity card 116210620, Shirley Martínez Martínez, identity card 504280442, María Jesús González Jiménez, identity card 118200649, Cinthya Jiménez Murillo, identity card 204770743, Ricardo González Ávila, and Sergio González Ávila, identity card 204210198, seek active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
9. 10In a filing added to the electronic case file on 9 de abril de 2021, Noe Rivera Valverde, identity card 118300979, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
10. 11In a filing added to the electronic case file on 9 de abril de 2021, Josué González Prendas, identity card 208450880, Maggui Prendas Salazar, identity card 108590442, Marcela Jiménez Murillo, identity card 205090536, Sergio González Jiménez, identity card 116210620, Shirley Martínez Martínez, identity card 504280442, María Jesús González Jiménez, identity card 118200649, Cinthya Jiménez Murillo, identity card 204770743, Ricardo González Ávila, and Sergio González Ávila, identity card 204210198, state their position on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
11. 12In a filing added to the electronic case file on 9 de abril de 2021, Johanna Murillo Víquez, identity card 208430431, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
12. 13In a filing added to the electronic case file on 9 de abril de 2021, Alberto David Leitón Godínez, identity card 118280542, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
13. 14In a filing added to the electronic case file on 9 de abril de 2021, Eduardo Josué Morales Bermúdez, identity card 208090831, seeks active supporting intervention.
14. 15In a filing added to the electronic case file on 9 de abril de 2021, Valeria Marín Calderón, identity card 118490444, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
15. 16In a filing added to the electronic case file on 9 de abril de 2021, Alessia Barletta Bogantes, identity card 118620938, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
16. 17In a filing added to the electronic case file on 12 de abril de 2021, Yariel Mora Chavarría, identity card 117810211, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
17. 18In a filing added to the electronic case file on 12 de abril de 2021, Yendry Calderón León, identity card 117900031, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
18. 19In a filing added to the electronic case file on 12 de abril de 2021, Stacy Barrantes González, identity card 402550941, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
19. 20In a filing added to the electronic case file on 12 de abril de 2021, Gabriela Rodríguez Castro, identity card 208350662, seeks active supporting intervention on the same terms as the filing added to the electronic case file on 8 de abril de 2021.
20. 21In a written submission entered into the digital case file on 12 de abril de 2021, Emily Arleth Segura Mora, identity card (cédula de identidad) 305160140, José Andrés Ortiz Ureña, identity card 305020615, María Ureña Jiménez, identity card 107420506, Juan Ortiz Carrión, identity card 106140823, and Yanelli Abarca Abarca, identity card 304560865, seek to participate as supporting parties (coadyuvancia activa) on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
21. 22In a written submission entered into the digital case file on 12 de abril de 2021, David Antonio Marín Zúñiga, identity card 117760021, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
22. 23In a written submission entered into the digital case file on 12 de abril de 2021, Kathleen Soto Fonseca, identity card 402620336, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
23. 24In a written submission entered into the digital case file on 12 de abril de 2021, Hellen Barrantes Murillo, identity card 208450961, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
24. 25In a written submission entered into the digital case file on 12 de abril de 2021, Diana Hidalgo Alfaro, identity card 118580735, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
25. 26In a written submission entered into the digital case file on 12 de abril de 2021, Adrián Mora Molina, identity card 118910124, seeks to participate as a supporting party.
26. 27In a written submission entered into the digital case file on 12 de abril de 2021, Fiorella Vega Motta, identity card 118630383, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
27. 28In a written submission entered into the digital case file on 12 de abril de 2021, Lilliam Daniela Mora Montoya, identity card 118500530, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
28. 29The notices (edictos) referred to in the second paragraph of Article 81 of the Ley de la Jurisdicción Constitucional were published in issues nos. 70, 71 and 72 of the Boletín Judicial dated 13, 14 and 15 de abril de 2021, respectively.
29. 30In a written submission entered into the digital case file on 13 de abril de 2021, Jorge Alberto Serendero Hülssner, residence card (cédula de residencia) 115200011317, in his capacity as representative of For The Oceans Foundation, legal entity identification number (cédula jurídica) no. 3-006-735148, seeks to participate as a supporting party. He states: “I believe that this constitutional challenge (acción de inconstitucionalidad) should be upheld because the challenged law is not supported by scientific studies that would justify reducing marine protection or establishing the special tourism zone, which clearly pursues commercial purposes that conflict with Article 50 of the Constitution and the environmental interest arising from our legal system (Ordenamiento Jurídico). It seems to me that there is a very serious problem in the marine area because the construction of docking facilities and piers was authorized, as stated in Article 16 of the law, even though this is completely prohibited by the Ley de Concesión y Operación de Marinas y Operación Atracaderos de Marinas y Atracaderos Turísticos, in its first article.Such works could never be part of a national park because they promote pollution, thereby defeating the purpose of a national park or wildlife refuge (refugio de vida silvestre); I therefore request a declaration of unconstitutionality. Finally, I believe it is entirely unconstitutional to have reduced the depth at the park’s perimeter from 6 meters to 3, because no study was conducted to justify it. It is wholly contradictory for an island with several marine wetlands to have its protected perimeter—which extends to a depth of 6 meters measured from low tide—restricted; for this reason, because contradictions exist between this new law and the Convención RANSAR and the Ley Orgánica del Ambiente regarding the protection of these wet forests, I request a declaration of unconstitutionality for violation of the precautionary principle (principio precautorio) and the principle of non-regression (principio de no regresión).It seems clear that this Trust Administration Committee (Comisión Administradora del Fideicomiso) pursues commercial purposes, as the law itself provides; in this regard, I submit that the trust structure (fideicomiso) itself constitutes a purely commercial entity, and I therefore believe that the trust conflicts with the Political Constitution and that Article 13, which permits the establishment of trusts in this protected wilderness area (área silvestre protegida), must therefore be declared unconstitutional. Article 13 of the law openly conflicts with the provisions of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America (Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América) (Ley 3763), which states regarding national parks: “ARTICLE III. The resources existing therein shall not be exploited for commercial purposes.” But if you look at Article 9 of the challenged law, it states: “Article 9.- Duties and powers.The Board of Directors of Parque Nacional Isla San Lucas shall have the following powers: ... ¿O Define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island….” I therefore maintain that authorizing the establishment of trusts violates rules of international law and even the Ley del Servicio de Parques Nacionales, which would be linked to Article 50 of the Constitution. I could not conclude without noting that several types of forest currently cover 100 percent of the island; how, then, is all of this compatible with conducting commercial activities? The truth is that terrestrial biodiversity could be seriously jeopardized by this unconstitutional law.”
30. 31In a written submission entered into the digital case file on 13 de abril de 2021, Andersson Montes Carrillo, identity card 118670764, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
31. 32In a written submission entered into the digital case file on 13 de abril de 2021, Esteban Castro Oviedo, identity card 208440854, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
32. 33In a written submission entered into the digital case file on 13 de abril de 2021, Jorge Enrique Morales Gómez, identity card 504460722, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
33. 34In a written submission entered into the digital case file on 13 de abril de 2021, Marco Chavarría Sánchez, identity card 402540558, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
34. 35In a written submission entered into the digital case file on 13 de abril de 2021, Christopher Solís Chavarría, identity card 402150734, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
35. 36In a written submission entered into the digital case file on 13 de abril de 2021, Anllel Raquel Cordero Mayorga, identity card 702690567, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
36. 37In a written submission entered into the digital case file on 13 de abril de 2021, Yendry Pamela Estrada Rivera, identity card 702880343, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
37. 38In a written submission entered into the digital case file on 13 de abril de 2021, Jenifer Vargas Madrigal, identity card 208210084, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
38. 39In a written submission entered into the digital case file on 13 de abril de 2021, Juan Manuel Morales Prado, identity card 504490003, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
39. 40In a written submission entered into the digital case file on 13 de abril de 2021, Keilyn Leticia López López, identity card 504460796, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
40. 41In a written submission entered into the digital case file on 13 de abril de 2021, Marcelo Antonio Roa Rosales, identity card 208500759, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
41. 42In a written submission entered into the digital case file on 13 de abril de 2021, Sharon Camila Alfaro Núñez, identity card 402600839, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
42. 43In a written submission entered into the digital case file on 13 de abril de 2021, Sofía Cordero Cordero, identity card 118870321, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
43. 44In a written submission entered into the digital case file on 13 de abril de 2021, Keytlin Gómez Zúñiga, identity card 402600263, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
44. 45In a written submission entered into the digital case file on 13 de abril de 2021, Jeilyn Elena Flores Navarro, identity card 305160463, seeks to participate as a supporting party.
45. 46In a written submission entered into the digital case file on 13 de abril de 2021, Keilyn Calvo Campos, identity card 118040698, seeks to participate as a supporting party.
46. 47In a written submission entered into the digital case file on 13 de abril de 2021, Shazad Rolando Fuentes Chavarría, identity card 116670007, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
47. 48In a written submission entered into the digital case file on 14 de abril de 2021, Alberto Cruz Ramírez, identity card 402400204, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
48. 49In a written submission entered into the digital case file on 14 de abril de 2021, Daniel Mena Vargas, identity card 118810657, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
49. 50In a written submission entered into the digital case file on 14 de abril de 2021, Madeline Garita Matamoros, identity card 118370090, seeks to participate as a supporting party.
50. 51In a written submission entered into the digital case file on 14 de abril de 2021, Sharon Blandón Ruiz, identity card 118690830, seeks to participate as a supporting party on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
51. 52In a written submission entered into the digital case file on 14 de abril de 2021, Kevin Núñez Jaimes, identification number 117002159511, seeks to participate as a supporting party (coadyuvancia).
52. 53In a written submission entered into the digital case file on 14 de abril de 2021, Daniela Agüero Araya, identity card 402590318, Mario Campos Artavia, Silvia Cedeño Ulate, identity card 109940129, Hazel Araceli Oviedo Gómez, identification number 155820812216, Vinicio Agüero Hernández, identity card 108090447, Nuria Araya Cruz, identity card 108650786, Tamara Sánchez Di Luca, identity card 402600368, and Valeria Sánchez Di Luca, identity card 402530073, seek to participate as supporting parties on the same terms as in the written submission entered into the digital case file on 8 de abril de 2021.
53. 54In a written submission added to the digital case file on 14 de abril de 2021, Ariel Granda Solano, identity card 402590208, seeks active intervention (coadyuvancia activa) on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
54. 55In a written submission added to the digital case file on 14 de abril de 2021, María Jesús Víquez Camacho, identity card 402550350, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
55. 56In a written submission added to the digital case file on 14 de abril de 2021, Eduardo Carillo Jiménez, identity card 105750493, seeks active intervention and states: “A- With respect to the marine portion, it is clear that there has been an unjustified reduction of the protected wildlife area (área silvestre protegida), since, for example, voto No. 13099-2010 had established that the marine portion would be expanded by 210 hectares, whereas Article 3 of the challenged Law merely states: (…) As may be seen from the foregoing, it is clear that the language highlighted in bold openly contravenes voto No. 13099-2010. Furthermore, there is no explanation or justification for referring to a boundary extending to a depth of 3 meters when Refugio de Vida Silvestre Isla San Lucas contemplated a perimeter extending to a depth of 6 meters. On what studies was the conclusion that such a reduction was reasonable based and contemplated?The foregoing reveals a provision that violates the principle of non-regression (principio de no regresión), and we request that it be so declared. It is also unconstitutional to seek to establish a ‘tourism zone’ that would be DIFFERENTIATED (as Article 3 of the Law states) from the rest of the park. On what scientific criteria is a differentiated zone created within a national park in Costa Rica? Let us recall that national parks are intended to protect biodiversity and the landscape, but they are not places to be fragmented as the new Law seeks to do; consequently, there is an irregularity that violates the spirit of the Ley del Servicio de Parques Nacionales itself, and we request that it be so declared. It is evident that all the foregoing was done without studies and that the legislators lack jurisdiction to go as far as they did; therefore, I request that it be declared unconstitutional.National parks are important areas because of the biodiversity they contain and, in general, are large areas containing ecosystems that protect various ecological processes representative of the geographical area in which they are located. In this case, Isla de San Luca could be declared a protected wildlife area, but never a National Park.”
56. 57In a written submission added to the digital case file on 14 de abril de 2021, Carlos Andrés Matamoros Durán, identity card 702830890, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
57. 58In a written submission added to the digital case file on 14 de abril de 2021, Stephanie Fabiola Arrieta Ángulo, identity card 117940867, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
58. 59In a written submission added to the digital case file on 14 de abril de 2021, Hazel Vanessa Jiménez Selva, identity card 208400078, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
59. 60In a written submission added to the digital case file on 14 de abril de 2021, Diego Cruz Bermúdez, identity card 118620966, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
60. 61In a written submission added to the digital case file on 14 de abril de 2021, Monserrat Ramírez Madrigal, identity card 118480304, Juan Ramírez Ruiz, identity card 106440854, Rachell Rojas Solano, identity card 118510666, Yolanda Madrigal Hernández, identity card 107410939, Viviana Mora Madrigal, identity card 146290370, Maricel Rodríguez Hernández, identity card 601900810, Saúl Mora Madrigal, identity card 116730994, Estefany Murillo Madrigal, identity card 113090685, and Jerry Fernández Carrión, identity card 112060455, seek active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
61. 62In a written submission added to the digital case file on 15 de abril de 2021, David Rodríguez Paniagua, identity card 402170554, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
62. 63In a written submission added to the digital case file on 15 de abril de 2021, Jeymar Dixon Solano, identity card 702730750, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
63. 64In a written submission added to the digital case file on 15 de abril de 2021, Cherlin Urbina Rosales, identity card 402570190, seeks active intervention.
64. 65In a written submission added to the digital case file on 15 de abril de 2021, Melanie Quirós Porras, identity card 117830321, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
65. 66In a written submission added to the digital case file on 15 de abril de 2021, Hugo Arias Ramírez, identity card 204610008, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
66. 67In a written submission added to the digital case file on 15 de abril de 2021, Brandy Tamara Jiménez Araya, identity card 118730794, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
67. 68In a written submission added to the digital case file on 15 de abril de 2021, Sebastián Morales Pérez, identity card 208430018, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
68. 69In a written submission added to the digital case file on 15 de abril de 2021, María Daniela Aguilar Chavarría, identity card 118570529, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
69. 70In a written submission added to the digital case file on 15 de abril de 2021, Mariela Brenes Orozco, identity card 305420304, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
70. 71In a written submission added to the digital case file on 15 de abril de 2021, Jeilyn Flores Navarro, identity card 305160463, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
71. 72In a written submission added to the digital case file on 15 de abril de 2021, Karla Valeska Solís Salazar, identity card 604750438, and Olga Mayela Salazar Bonilla, identity card 108150009, seek active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
72. 73In a written submission added to the digital case file on 15 de abril de 2021, Luis Diego Bustos Arguedas, identity card 402520195, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
73. 74In a written submission added to the digital case file on 15 de abril de 2021, Lisbeth Sánchez Rodríguez, identity card 702730398, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
74. 75In a written submission added to the digital case file on 15 de abril de 2021, Allan Solano León, identity card 402400301, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
75. 76In a written submission added to the digital case file on 15 de abril de 2021, Jennifer Vásquez Arias, identity card 208130412, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
76. 77In a written submission added to the digital case file on 15 de abril de 2021, Keylin López López, identity card 504460796, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
77. 78In a written submission added to the digital case file on 15 de abril de 2021, José Carlos Araya Campos, identity card 604810847, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
78. 79In a written submission added to the digital case file on 15 de abril de 2021, Leidy Sequeira Obando, identity card 208340142, seeks active intervention in these proceedings.
79. 80In a written submission added to the digital case file on 15 de abril de 2021, Natasha Solís Solórzano, identity card 114200104, seeks active intervention.
80. 81In a written submission added to the digital case file on 16 de abril de 2021, Sofía Cordero Cordero, identity card 118870321, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
81. 82In a written submission added to the digital case file on 16 de abril de 2021, Natasha Solís Solórzano, identity card 114200104, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
82. 83In a written submission added to the digital case file on 16 de abril de 2021, Iván Rojas Arce, identity card 208340708, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
83. 84In a written submission added to the digital case file on 16 de abril de 2021, Iván Mora Brenes, identity card 117600649, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
84. 85In a written submission added to the digital case file on 16 de abril de 2021, Troy Vargas Ortiz, identity card 117300937, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
85. 86In a written submission added to the digital case file on 16 de abril de 2021, Keytin Zapata Cortés, identity card 702870157, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
86. 87In a written submission added to the digital case file on 16 de abril de 2021, Isaura Mora Bárcenas, identity card 117760949, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
87. 88In a written submission added to the digital case file on 16 de abril de 2021, Fabricio Ávila Sanabria, identity card 208340774, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
88. 89In a written submission added to the digital case file on 16 de abril de 2021, Kendry Chavarría Mena, identity card 402580706, seeks active intervention on the same terms as in the written submission added to the digital case file on 8 de abril de 2021.
89. 90By written submission incorporated into the digital case file on April 16, 2021, Roberto Molina Ugalde, in his capacity as representative of the Sindicato de Trabajadores del Ministerio de Ambiente y Energía (SITRAMINAE), files an active intervention (coadyuvancia activa). He states: “I appear before this Authority to file an active intervention seeking a declaration that Ley No. 9892, enacted on August 24, 2020, is unconstitutional because it is contrary to the principles of non-regression, proportionality, objectification, precaution, and progressivity. Our organization joins the prior constitutional challenge (acción de inconstitucionalidad) as an intervenor, pursuant to Articles 75 and 84 of the current Ley de la jurisdicción Constitucional. Furthermore, because the matter under discussion concerns diffuse interests (intereses difusos) in environmental matters due to the violation of Articles 50 and 89, I request that we be deemed to have standing in this action (…) FIRST: We consider that Article 15 of the law challenged as unconstitutional must be declared inapplicable within the national legal system, since it establishes the creation of a police force or private security force that will supposedly work alongside the park rangers (guardaparques).This is contrary to the duty entrusted to hundreds of colleagues who work for SINAC MINAE and has no basis in any body of law. Bear in mind that a private police force within a national park conflicts with the oversight and protection duties that we perform as public officials, who are recognized as police authorities (a special police force of the Costa Rican State). The foregoing reflects an intention to eliminate SINAC’s functions within protected wildlife areas (áreas silvestres protegidas), and that is extremely dangerous, since the persons appointed would not have the sensitivity or training possessed by our colleagues. We therefore face an encroachment upon powers (invasión de competencias) that has no legal basis; moreover, given that there is no financial support for training or salaries, this new force would impair the work performed by SINAC on San Lucas, both in the marine and terrestrial areas.We therefore consider this unconstitutional. The apparent purposes of this private police force are clearly commercial, which must not be permitted in a national park. If unconstitutionality is not declared, a serious problem will arise regarding the coordination and command of this security force, because it is unclear whether it will answer to SINAC, to the board of directors to be created (on which no one from SINAC will participate), or to the merchants who obtain concessions within the park. We therefore respectfully request that provision 15 be declared unconstitutional. Articles 191 and 192 of our Constitution are violated, insofar as the park ranger service is governed by a statutory regime (régimen estatutario), with public-service selection mechanisms based on suitability; these would not be respected in this case because the door would be opened to a police force whose duties and purposes differ from those of the park rangers themselves, who do possess the requisite powers and are subject to a statutory regime such as the Civil Service.SECOND: As provision 10 of Ley 9892 is currently framed, participation by a SINAC representative in decision-making concerning the administration of this protected wildlife area was omitted, and this would violate the duty of protection entrusted to that entity pursuant to Article 23 of the Ley de la Biodiversidad, read in conjunction with Article 50 of our Constitution, and we ask that it be so declared. We believe that excluding the director of SINAC from the board of directors constitutes an abandonment of environmental powers that violates the public environmental interest that should have prevailed and is therefore unconstitutional. It is extremely important to note that the Consejo Regional de Áreas de Conservación (CONAC) was never asked for its opinion when the Law was merely a bill, and this violates the duty to participate in legislative decision-making; plainly, a member of CORAC should also have formed part of that administrative board of directors.For all these reasons, we consider that provision 10 must be declared unconstitutional. The entire law must also be declared unconstitutional because the opinion of an entity vital to the administration of protected wildlife areas was not requested. CONAC is the highest administrative body of the Sistema Nacional de Áreas de Conservación, and it was never consulted regarding that provision, nor was there ever a final resolution endorsing it. In other words, the prerogatives established by Articles 11 and 50 of our Constitution are violated, and the aforementioned Article 10 of the law at issue must therefore likewise be declared unconstitutional. THIRD: It appears to us that, if the protected wildlife area covered hundreds of hectares, there is no justification whatsoever for the law’s reduction of the area to be protected, specifically as regards the marine area. Let us recall that constitutional decision No. 13099-2010 had determined that the marine portion would be expanded by 210 hectares, but Article 3 of the challenged Law said nothing about this.And where are the technical and scientific studies justifying that reduction? Do we now have two areas with different management categories (categorías de manejo)? If so, what studies justify one marine area continuing to be a refuge and the other being a national park? Since the case file contains nothing in that regard, provision 3 of the new law—and therefore the entire law—must be declared unconstitutional, because this cannot be remedied through interpretation. Indeed, this problem CANNOT be remedied through mere interpretation, because, in addition to the foregoing, a marine area measuring 3 meters around the island’s entire perimeter has been left in legal limbo, given that the law established the park as extending to a depth of 3 meters, while the refuge extended to a depth of 6 meters. For all these reasons, we find inconsistencies of constitutional magnitude that warrant a declaration of unconstitutionality due to a lack of clarity and the uncertainty created by the absence of studies supporting the decision-making.To conclude this section, no provision was made regarding the marine areas containing mangroves, and this violates the RAMSAR Convention, because it should have been noted that those forests extend to a depth of 6 meters, measured from low tide. If that is so, why was a boundary extending to a depth of only 3 meters authorized? The answer is clear: everything was done in an improvised manner, and the competent environmental body, SINAC (CONAC), was not consulted. We believe that the Principle of Reasonableness (Principio de Razonabilidad) of public acts, as established in Voto N° 1739-92 of the Constitutional Chamber itself, is violated because there is no reasonable relationship among the technical means used to measure the perimeter of the protected area, as mentioned in this same section. FOURTH: It is deeply troubling that provision is made to establish a ‘tourism zone’ that would be differentiated from and would fragment the terrestrial portion of the park, as set forth in Article 3 of the Law.That zone, which fragments or segments the park, pursues commercial purposes, and it is presumably there that the commercial concessions authorized by the board of directors will operate. The question you should ask yourselves is: Where are the studies justifying the fragmentation or division of a national park? You will find nothing of the sort in any study, because there are no technical or scientific studies whatsoever in the legislative file; what we therefore see is improvised biodiversity management, risks of significant environmental harm, and mere abusive discretion, and we ask that the judgment so declare. In this regard, Articles 3 and 6 are unconstitutional, and consequently so is the entire Law, because they are central and structural components of the challenged legislation. Attached is a note from the secretary of CONAC (…) 1.- We request that this honorable judicial authority recognize us as an intervening party in this constitutional challenge filed under expediente N° 21-005756-0007-CO, which is pending before the courts. 2.- In conjunction with all the foregoing, we likewise request that the claims alleged in the factual grounds of this intervention be incorporated into the dispute.”
90. 91By written submission incorporated into the digital case file on April 16, 2021, María Cerdas Solís, identity card number 118700632, files an active intervention on the same terms as the written submission incorporated into the digital case file on April 8, 2021.
91. 92In a written submission incorporated into the digital case file on 16 de abril de 2021, Javier Rodríguez Fonseca, identity card 105460710, enters an active intervention (coadyuvancia activa) and requests that the constitutional challenge (acción de inconstitucionalidad) be granted. He states: “THIRD: Above all, I believe that the marine portion is being severely affected insofar as there was a reduction that has left many hectares around the island unprotected, as stated in the arguments of this action. In terms of depth, the marine portion of the aforementioned protected area is reduced by half, because originally, as a wildlife refuge (refugio de vida silvestre), it had a marine area extending to a depth of up to 6 meters, but Article 3 of the Law transforming it into a national park reduces it to a depth of 3 meters. Because its current management category (categoría de manejo) affords greater protection, this reduction is contradictory, compounded by the fact that no reasonable and proportionate technical or administrative study or justification is provided for such a severe and serious reduction.Nor was any compensatory action (acción compensatoria) in this regard included in the drafting and enactment of that law. This contravenes all scientific, technical, and administrative principles governing the management of a protected wilderness area (área silvestre protegida), as well as the spirit of the Ley del SINAC, which promotes the reasonable expansion, rather than reduction, of areas for the protection and strengthening of the ecosystems on which humans and other species depend. FOURTH: Still with reference to the reduction of the marine area of the new national park, the honorable legislators completely overlooked the enormous value of marine protected areas (Áreas Marinas Protegidas, AMPs) as sites where fish populations and other associated marine resources can recover and spill over into surrounding areas. Because Isla San Lucas is one of the few protected marine sites in the Golfo de Nicoya, whose fishery resources are already overexploited, it is inconsistent to reduce the marine protected area of what is now a national park, which serves as a local guarantor of invaluable food security for the impoverished inhabitants of the gulf, particularly in the context of the Covid-19 pandemic in which we still find ourselves.FIFTH: It is also extremely important to explain that the boundaries established in the challenged Law DO NOT include the 210 hectares of marine area and islets that were added to the Refugio de Vida Silvestre through Decreto 34282 and that the Sala Constitucional retained as part of the protected area in decision no. 130992010. It cannot be said that those 210 Ha remain a ‘refuge’ outside the new park, because that fragmentation into two types of protected wilderness areas has NO justification, nor are there any studies or consultation processes (procesos consultivos) that justify what was done; this is extremely dangerous, and I therefore request that it be so declared. SIXTH: Closely related to the preceding point, that arbitrary removal of marine surface area from this protected area, together with the aforementioned reduction in its depth, eliminates the possibility of carrying out the various sustainable and responsible activities associated with growing marine tourism, such as tourist observation of cetaceans (whales, dolphins, and related species), diving and snorkeling, seabird watching, etc., which contravenes the very purposes and provisions of the law at issue.It also conflicts with the technical recommendations, consistent with SINAC’s objectives, made by various consultants in recent years to strengthen marine-tourism activities on the island. SEVENTH: The stated reductions also run counter to governmental, national, and global policies to increase MPAs to 30% of the area of each country’s Exclusive Economic Zone (Zona Económica Exclusiva, ZEE) and of the planet’s marine territory, a commitment that Costa Rica has assumed over the course of several administrations. EIGHTH: The establishment of a Board of Directors that manages and administers the Park is a mechanism not provided for under the Ley de Creación del SINAC and, moreover, includes no representatives from academia or from non-business civil society. NINTH: In my opinion, all the foregoing considerations are essential grounds for declaring that that (sic) the entire law is unconstitutional.”
92. 93In a written submission incorporated into the digital case file on 16 de abril de 2021, María Fernanda Cerdas Solís, identity card 118700632, Isabel Cristina Solís Solano, identity card 108630384, and Manuel Alberto Cerdas Salazar, identity card 108320968, enter active interventions on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
93. 94In a written submission incorporated into the digital case file on 16 de abril de 2021, Shirley Méndez Cordonero, identity card 116480411, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
94. 95In a written submission incorporated into the digital case file on 16 de abril de 2021, Siam Herrera Arias, identity card 117920947, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
95. 96In a written submission incorporated into the digital case file on 19 de abril de 2021, Natasha Solís Solórzano, identity card 114200104, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
96. 97In a written submission incorporated into the digital case file on 19 de abril de 2021, Michelle Castro Aguilar, identity card 118320895, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
97. 98In a written submission incorporated into the digital case file on 19 de abril de 2021, Ángel Gabriel Loaiza Vargas, identity card 118450087, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
98. 99In a written submission incorporated into the digital case file on 19 de abril de 2021, Mayke Monge Vargas, identity card 117930324, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
99. 100In a written submission incorporated into the digital case file on 19 de abril de 2021, Marlene Valverde Chacón, identity card 105510575, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
100. 101In a written submission incorporated into the digital case file on 19 de abril de 2021, Esteban Valverde Vásquez, identity card 116720527, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
101. 102In a written submission incorporated into the digital case file on 19 de abril de 2021, Angie Gómez López, identity card 117180283, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
102. 103In a written submission incorporated into the digital case file on 19 de abril de 2021, Maripaz Espinach Bonilla, identity card 118530618, Cynthia Bonilla Alfaro, identity card 110430592, María Isabel Alfaro Chavarría, identity card 104170263, María Bonilla Alfaro, identity card 108300229, Andrés Espinach Bonilla, identity card 115820626, Mauricio Espinach Montero, identity card 105780247, and Gabriel Espinach Bonilla, identity card 117850591, enter active interventions on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
103. 104In a written submission incorporated into the digital case file on 19 de abril de 2021, Kendry Jiménez Hernández, identity card 118750196, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
104. 105In a written submission incorporated into the digital case file on 19 de abril de 2021, Michelle Ulloa Martínez, identity card 118400691, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
105. 106In a written submission incorporated into the digital case file on 19 de abril de 2021, Leidy Sequeira Obando, identity card 208340142, enters an active intervention.
106. 107In a written submission incorporated into the digital case file on 19 de abril de 2021, Cynthia Alvarado Bravo, identity card 305310106, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
107. 108In a written submission incorporated into the digital case file on 19 de abril de 2021, Melany Gamboa Mata, identity card 118720956, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
108. 109In a written submission incorporated into the digital case file on 19 de abril de 2021, Josyah Barahona Pérez, identity card 118650312, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
109. 110In a written submission incorporated into the digital case file on 19 de abril de 2021, Daniela Vargas Leitón, identity card 208470661, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
110. 111In a written submission incorporated into the digital case file on 19 de abril de 2021, Clarissa León Alfaro, identity card 118150214, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
111. 112In a written submission incorporated into the digital case file on 19 de abril de 2021, Sheiner Umaña Erazo, identity card 118390236, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
112. 113In a written submission incorporated into the digital case file on 19 de abril de 2021, Sebastián Castro Rojas, identity card 118760799, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
113. 114In a written submission incorporated into the digital case file on 19 de abril de 2021, Leonardo Nach Vivas, identity card 702970969, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
114. 115In a written submission incorporated into the digital case file on 19 de abril de 2021, Grettel Sánchez Montezuma, identity card 702910457, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
115. 116In a written submission incorporated into the digital case file on 19 de abril de 2021, Ian Calvo Jiménez, identity card 305480829, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
116. 117In a written submission incorporated into the digital case file on 19 de abril de 2021, Geison Fuentes Arguedas, identity card 702800765, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
117. 118In a written submission incorporated into the digital case file on 20 de abril de 2021, Fabián Herrera Núñez, identity card 207980001, María Edith Núñez Carvajal, Daniel Aguilera Núñez, Steven González Salazar, Yulissa Orozco Alfaro, Grettel Aguilera Salazar, Paola Salazar Aguilera, José Pablo Núñez Salazar, Joshua González Alfaro, Gabriela Núñez Salazar, Wendy González Salazar, Fidedigno Corrales Barrantes, Saul Matarrita Alvarado, Willian Salazar Carranza, and Manuel Herrera Corrales enter active interventions on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
118. 119In a written submission incorporated into the digital case file on 20 de abril de 2021, Daniela Vargas Leitón, identity card 208470661, enters an active intervention on the same terms as the written submission incorporated into the digital case file on 8 de abril de 2021.
119. 120In a written submission added to the digital case file on 20 de abril de 2021, Laura Porras Rojas, identity card number 118400342, files an active third-party intervention (coadyuvancia activa) on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
120. 121In a written submission added to the digital case file on 20 de abril de 2021, Steven Lozano Raith, identity card number 117860189, submits an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
121. 122In a written submission added to the digital case file on 20 de abril de 2021, Nikole Segura Mora, identity card number 118040136, submits an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
122. 123In a written submission added to the digital case file on 20 de abril de 2021, Gabriel Bello Escalona, identity document number 186201205318, submits an active third-party intervention.
123. 124In a written submission added to the digital case file on 20 de abril de 2021, Valeria Calderón Mora, identity card number 117980913, files an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
124. 125In a written submission added to the digital case file on 20 de abril de 2021, Aaron Chávez Molina, identity card number 118750067; Larissa Chávez Molina, identity card number 116520300; Johel Chávez Molina, identity card number 117900923; Telma Molina Núñez, identity card number 801300395; and Joel Chávez Ríos, identity document number 122200244732, submit active third-party interventions on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
125. 126In a written submission added to the digital case file on 20 de abril de 2021, Brandon Sánchez Chavarría, identity card number 208360240, submits an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
126. 127In a written submission added to the digital case file on 20 de abril de 2021, Valeria Cortés Brenes, identity card number 118730609, files an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
127. 128In a written submission added to the digital case file on 20 de abril de 2021, Kacey Gabriel Alvarado Jiménez, identity card number 118660508; Lenni Jiménez Elizondo, identity card number 603130586; Jorge Gerardo Jiménez Arias, identity card number 103920122; Yamilet Elizondo Peraza, identity card number 602860575; Flory Elizondo Peraza, identity card number 105140606; Steven Juarez Segura, identity card number 115200312; Leidy Jiménez Elizondo, identity card number 603330655; Daniel Morales Gutiérrez, identity card number 110950920; Stephanie Brenes Solano, identity card number 114370645; Mauricio Brenes Fernández, identity card number 302560890; and Jairo Salas Sánchez, identity card number 116790349, submit active third-party interventions on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
128. 129In a written submission added to the digital case file on 20 de abril de 2021, Laura Barrientos Calderón, identity card number 112750356, files an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
129. 130In a written submission added to the digital case file on 20 de abril de 2021, Hillary Cubero Araya, identity card number 604740344, submits an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
130. 131In a written submission added to the digital case file on 20 de abril de 2021, Emmanuel Arce Quesada, identity card number 118050443, submits an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
131. 132In a written submission added to the digital case file on 20 de abril de 2021, Fabiola González Martínez, identity card number 402580758, files an active third-party intervention on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
132. 133In a written submission incorporated into the digital case file on 21 de abril de 2021, Gustavo José Segura Sancho appears in his dual capacity as executive president of Instituto Costarricense de Turismo and minister of Tourism. He states: “HISTORICAL ASPECTS CONNECTED WITH ISLA SAN LUCAS. The Golfo de Nicoya constituted the southern boundary of Mesoamerica, where the subarea known as Gran Nicoya developed. During the Middle Polychrome period (800 a 1200 d.C.), the region experienced migrations of Mexican peoples of the Chorotega-Mange ethnic group (Dirán and Orotiña) into the Península de Nicoya and east of the Gulf, and was characterized by prosperity and the development of handicrafts. By the Late Polychrome period (1200 a 1525 d.C.), which ended with contact with Europeans, the culture possessed many traits characteristic of Mexican cultures.1 In addition, the Spaniards Juan de Castañeda and Hernández Ponce de León, lieutenants of Pedro Arias de Avila (sic) (Pedrarias Dávila), discovered the Golfo de Nicoya in 1519.Gil González de Avila (sic) (Dávila) subsequently explored it in 1522, reaching as far as the río Tempisque, which the Indigenous inhabitants called Zapandí, Sabandí or Sapandí. 2 The islands of the Golfo de Nicoya, known as San Lucas, Orotiña or de los Güetares, were described extensively by Gonzalo Fernández de Oviedo y Valdés, the Spanish chronicler who visited it in 1529. Oviedo prepared a chorographic map of the Golfo de Nicoya showing nine of its islands and referring to some of them by their Indigenous names. 3 In February 1853, the German traveler Wilhelm Adolp Marr described the area in question, stating that: The Golfo de Nicoya is one of the most beautiful spectacles of southern nature that can be imagined. Remove from the Gulf of Naples the works resulting from human artistic activity—that is, the entire city of Naples and its surroundings—and I wager that every traveler will award the palm to the Golfo de Nicoya.It is a basin 12 a 15 leagues long and 1 a 6 wide, extending almost from south to north into that magnificent country, “the paradise of the Andes,” called Costa Rica…On the opposite shore of the gulf, the moderately elevated mainland is fringed with jagged coral islands, among which, like surfaces of silver, lie the most delightful and sheltered coves fed by the great ocean. Farther up, toward Guanacaste, the gulf resembles the backdrop of a Swiss landscape and, with its islands, is not very different from Lake Maggiore. Finally, at the extreme north, the scene is bounded by a mountain range rising behind a swamp forest several miles long.4 With regard to Isla San Lucas, La Ley Nº 37 del 3 de agosto de 1847 granted the island a commercial franchise. However, shortly thereafter, the provision was repealed and the franchise was transferred to Puerto de Puntarenas by Ley Nº 46 del 4 de setiembre de 1847, artículo 7.In addition, Ley Nº 7 del 25 de febrero de 1874 regulated the penal colony (presidio) at San Lucas under the authority of the Gobernador de la Comarca de Puntarenas. Subsequently, Ley Nº 12 del 14 de setiembre de 1882, in view of the island’s inadequate sanitary conditions, authorized the Executive Branch to establish a new penal colony on another island along the Pacific coast (artículo 1) and ordered that prisoners with more than three months remaining on their sentences be transferred to the penal colony on isla del Coco or to whichever facility was selected to replace the one at San Lucas, with the benefit of a one-quarter reduction in the remainder of their sentences. Those with three months or less remaining would be transferred to the Puntarenas jail to serve that time by performing public works (artículos 2 y 3). Nevertheless, for reasons of economy for the Public Administration, under Ley Nº 7 del 6 de octubre de 1882, the prisoners on isla del Coco were sent to San Lucas (artículo 1), and it was ordered that the work necessary to make the San Lucas penal colony sanitary be carried out immediately at the expense of the National Treasury (artículo 3).The 1891 map prepared by Eliseo Fradin5 depicts the penal colony in the same sector in which it appears on the 1967 Hoja Cartográfica Golfo, namely, between the rocky outcrops adjoining Playa Pilitas and Playa El Inglés. In addition, Fradin’s map depicts six lookout points on the island, five around its coast and one inland, near Cerro Control. Ley Nº 89 del 20 de marzo de 1925 authorized the disbursement of forty thousand colones for the reconstruction of the buildings of the San Lucas penal colony, including the work necessary to provide electric lighting and a water supply, as well as ten thousand colones for the studies necessary to select the site of the new penal colony. Ley Nº 54 del 13 de junio de 1934 allocated twenty thousand colones for electric power services on the Island. The penal colony remained on the Island until Ley Nº 5469 del 25 de abril de 1974 ordered its relocation within two years of the law’s entry into force (Transitorio Único) and granted the Municipalidad de Puntarenas authority to administer its lands, a power reiterated by Ley 6043 on the Zona Marítimo Terrestre in its artículo 78.Decreto Nº 24520 del 27 de julio de 1995 declared the Edificio Presidio on this island to be of Historical and Architectural Interest. In addition, 9 archaeological sites have thus far been recorded in the island territory.6 Furthermore, Decreto Nº 29277 del 11 de enero del 2001, artículo 1º, declared the area comprising Isla San Lucas (4.62 km.) and the coastal marine area (área marino costero), consisting of the waters surrounding the island to a depth of up to 6 m, to be a National Wildlife Refuge (Refugio Nacional de Vida Silvestre), thereby transferring its administration to the Ministerio del Ambiente y Energía.7 Decreto Ejecutivo 32349 del 25 de febrero de 2005 established an Expansion and Delimitation of the Humedal Estero Puntarenas y Manglares Asociados area declared within the National Wildlife Refuge comprising Isla San Lucas and the coastal marine area. 8 Accordingly, artículo 2 provides that: Artículo 2º-The area of the Humedal Estero Puntarenas y Manglares Asociados declared pursuant to Decreto Ejecutivo N° 29277-MINAE is hereby expanded and delimited; its location is identified according to the Instituto Geográfico Nacional map sheets entitled Golfo, edición 3-IGNCR and Chapernal edición 2-IGNCR, with an area of 4362 ha…Based on the foregoing, legal provisions governing the administration of the Island have thus far coexisted with decrees establishing the territory’s historical status and environmental protection. REGARDING DECRETO EJECUTIVO 34282-TUR-MINAE-C AND THE CONSTITUTIONAL CHALLENGE FILED. Decreto Ejecutivo 34282-TUR-MINAE-C del 25 de enero de 20089, effective as of 8 de febrero de 2008, seeks to correct, delimit and expand the boundaries of Refugio Nacional de Vida Silvestre Isla San Lucas and declares the Island’s sustainable tourism development to be of national interest and a high priority. In response to a constitutional challenge (Acción de Inconstitucionalidad) filed against that Decree, the Sala Constitucional, in judgment 2010-013099 de las catorce horas y cincuenta y seis minutos del cuatro de agosto del dos mil diez, based on an integrated analysis of legal provisions and powers, essentially stated that: (…) Certain elements of the foregoing judgment may be summarized as follows: 1- Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) de 25 de enero de 2008, published in Alcance 10 a La Gaceta No. 28 del 8 de febrero de 2008, remains in force. 2- The provisions determining the existence of Refugio Nacional de Vida Silvestre Isla San Lucas remain unchanged. 3- The Sala Constitucional decision número 2010-013099 de las catorce horas y cincuenta y seis minutos del cuatro de agosto del dos mil diez remains fully in force. 4- The cited judgment clearly expresses the State’s obligation to consolidate powers for the purpose of administering Isla San Lucas. 5- Both environmental protection and the State’s historical heritage associated with Isla San Lucas must be respected. 6- There must also be coordination with tourism activities in order to provide areas for tourist visits and enjoyment, with sustainable development and protection of the forms of heritage established under the Constitution. 7- Coordination among various institutions creates the possibility of using financial resources to further constitutional protection and tourism development.REGARDING THE GROUNDS FOR CHALLENGE PRESENTED. With respect to the applicants’ assertions concerning possible constitutional defects, the following is noted: They claim that the entire law is unconstitutional without establishing any logical connection. El artículo 3 de la Ley de la Jurisdicción Constitucional provides that: “The Political Constitution shall be deemed to have been violated when this results from comparing the text of the challenged provision or act, its effects, or its interpretation or application by public authorities, with constitutional provisions and principles.” When it is asserted that a provision violates the Political Constitution, an actual conflict must be established, and the party filing the action must specify the reasons for the unconstitutionality and explain in what respect they may be regarded as such. It is not sufficient to assert that the entire Law is unconstitutional or to make allegations without connecting them to constitutional provisions or principles that have been violated.That obligation rests with the applicants. More simply, the following aphorism cannot be formulated: “The Political Constitution is deemed to have been violated when the Political Constitution is deemed to have been violated.” This obviously defines nothing. When unconstitutionality is alleged, a declaration shall be issued solely so that the provisions are interpreted or applied in harmony with the Constitution or, if their conflict with it proves irreconcilable, their non-application with general effect shall be ordered and they shall be formally challenged; none of these matters is evident in the written application. Unconstitutionality is the infringement, violation of, or conflict between a legal rule of lower rank than the Political Constitution and a legal rule of the Political Constitution or one of its principles. Likewise, the infringement or violation of, or conflict between, one constitutional legal rule and another constitutional legal rule governing procedure is unconstitutional; as will be observed, no such issue appears in the referenced filing.Regarding the contention that the challenged Law reduces the protected wilderness area (área silvestre protegida) without any justification. The applicants state that artículo 3 reduces the area to a depth of 3 metros. That provision establishes that: “Parque Nacional Isla San Lucas shall comprise a land portion and a coastal marine area. The land portion shall consist of the insular portion of Isla San Lucas, located in the Golfo de Nicoya, on the Instituto Geográfico Nacional map sheet entitled Golfo, Edición 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an area of four hundred and sixty-two hectares (462 ha). The coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m). Within the two foregoing areas, there shall be a differentiated management area (espacio de manejo diferenciado) devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural and environmental interest, which for all purposes shall be known as the Zona turística.” To analyze the cited provision, a comprehensive study of the legal framework in force must be conducted. As previously indicated, the Executive Branch, through Decreto No.

29277 of 11 de enero de 2001, declared Isla San Lucas and the surrounding marine area to a depth of six meters a Wildlife Refuge (Refugio de Vida Silvestre), providing that its administration would be the responsibility of the Ministerio de Ambiente y Energía and that its management would be governed by the relevant provisions established in the legislation in force on the matter. It was added that, through Executive Decree No. 30714-C of 26 de septiembre de 2002, the island, owned by the Municipalidad de Puntarenas, was declared and incorporated into the Architectural Heritage (Patrimonio Histórico Arquitectónico) of Costa Rica, with the declaration providing that the demolition of the property and its partial or total remodeling are prohibited without prior authorization from the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura. The properties in question include the chapel and the former prison, among others.

Regarding the validity of Executive Decree No. 29777, which created the protected wildlife area (área silvestre protegida) on the island, the Sala Constitucional stated: (…) In addition, Executive Decree No. 34282 of 25 de enero de 2008 was issued, increasing the Refuge’s area by 210 hectares (containing portions of water and islets), and declaring the island’s sustainable tourism development to be of national interest and high priority. It established a Permanent Commission composed of the Governing Ministers of Cultura, Juventud y Deportes, Turismo, and Ambiente y Energía, or their representatives, and the Alcalde de Puntarenas or the mayor’s representative, charged with ensuring the rational management of the lands excluded from the Refuge and under municipal administration. Likewise, that Decree provided that, for the development of tourism activities in the municipally administered area and the preservation of the island’s cultural heritage, the ICT would prepare a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible), which would include an environmental impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve economic, social, and environmental development objectives, as well as the protection of the cultural heritage of that specific area.

In other words, there is nothing new. It is clear that the protected areas had been duly identified. In addition, the actions and powers of the various administrations had already been clearly regulated. Moreover, in response to three constitutional challenges (acciones de inconstitucionalidad) filed against that Decree, the Sala Constitucional reaffirmed the validity of the creation of the Wildlife Refuge and, therefore, declared it unconstitutional only insofar as it reduced the Refuge’s terrestrial area, while nevertheless maintaining the prescribed addition of marine area. In that regard, as previously noted, it ruled: (…) What, then, can be inferred from the foregoing? Something very clear: Executive Decrees No. 29277, 30714-C, and 34282 remain in force, and Ley 9892 Creación del Parque Nacional Isla San Lucas repealed them neither expressly nor implicitly. In other words, the National Park is created, while the protection of the architectural, historical, and environmental heritage established by the aforementioned decrees also remains in force.

There is no change whatsoever, but rather an action providing greater protection. Is what is stated in Article 3 of the cited Law therefore unconstitutional? No. The issue of 3 or 6 meters is unavailing because Executive Branch rules remain in force. Indeed, given the need to integrate the legal system (ordenamiento), the legislature has established the order in which the various branches of law must be applied. Article 9 of the Ley General de la Administración Pública provides: 1. The administrative legal system is independent of other branches of law. Only when there is no applicable written or unwritten administrative rule shall private law and its principles apply. 2. Where integration is required due to a gap in the written administrative legal system, the following shall apply, in order: case law, the general principles of public law, custom, and private law and its principles. The legislature’s mandate is clear: there is an obligation to interpret the legal system as an integrated whole.

In the case at hand, the provisions of the Legislative Decree must be integrated with the Executive Decrees, since all of them establish the regulatory framework governing Isla de San Lucas, which is not only an environmental protection site but also a site for the protection of architectural heritage and the development of sustainable tourism activities. All of the foregoing was already stated by the Sala Constitucional in the judgment transcribed in previous sections. Regulatory integration (integración normativa) must be carried out using sources of Public Law, and only insofar as Public Law contains no written or unwritten regulation addressing a similar factual situation may recourse be had to other regulatory fields or to a finding of unconstitutionality. In the present case, and in accordance with the principle of integration of the legal system, the challenged provisions do not render the Law unconstitutional.

What occurred is that the petitioners (accionantes) neither applied nor analyzed the rules currently in force. Along these lines, the Procuraduría General de la República, in Legal Opinion (Opinión Jurídica) N. 39-99 of 24 de marzo de 1999, stated: (…) The foregoing requires determining whether Administrative Law, in its written or unwritten sources, contains provisions concerning the issue raised by the petitioners. It is pertinent to note that the regulations contained in Decrees No. 29277, 30714-C, and 34282 remain in force; therefore, there is no unconstitutionality whatsoever. Regarding the petitioners’ contention that the management category (categoría de manejo) is changed and a tourism zone is included without studies, the petitioners state that the Law currently in force converts the protected wildlife area into an area of tourism and commercial interest, and that sustainable tourism use (aprovechamiento turístico sostenible) is in fact a disguised means of generating ordinary commercial activity.

They further state that Article 6 reduces the prison areas, lots, trails, and beach areas to a tourism zone. All without technical studies. In addition, they claim that a tourism project entails tree cutting. Furthermore, without substantive support, they assert that the Law establishes commercial purposes disguised as sustainable solutions in the fragmentation of the protected wildlife area. Thus, they argue that Articles 3 and 16 permit docks, piers, and food services, as though it were an amusement park, because they constitute an open-ended list (numerus apertus). They also consider that Article 9 of the Law allows for envisioning what will become commercial areas. It is clear from the foregoing that the petitioners are incorrect. First, regarding Articles 3 and 9 of the Law, the challengers state that the development of docks is permitted. They are correct, since it is pertinent to note that, although it is not expressly stated, where there are seas, rivers, or lakes, there are docks.

What must be developed is a comprehensive sustainable tourism project, which the petitioners apparently do not understand. Nevertheless, in the same decision cited above (2010-013099), the Sala Constitucional, in addition to recognizing and accepting that several public actors participate in the management of the island and must act in accordance with the principles of unity and coordination, stated that the constitutionality of the remaining provisions of the Decree challenged in the action, and the possible tourism development proposed by the Decree, must have a very low environmental impact, while respecting the protection of the environment and the cultural assets existing in the area that gave rise to the two protection regimes converging there. That is precisely what is clearly established by the Law they seek to invalidate. In that regard, the Constitutional Court stated: (…) Note that the Sala itself points to a duty of coordination regarding the role of the Institutions, since environmental and historical heritage protection are not separate from tourism interests.

Quite the contrary, the proper interpretation of Article 50, in its clear dimension, entails the existence of recreational places for human beings. Tourism, which the petitioners attack, is an economic sector, an industry, and a social phenomenon of modernity and postmodernity. Travelers are always motivated to visit destinations because they are attracted by a natural feature or some significant element associated with flora and fauna. Sustainable tourism is a way of conducting and managing tourism. There are two perspectives: from the supply perspective, there is a management model—that is, how a destination manages its tourism resources in an environmentally friendly manner so that surrounding communities benefit while, at the same time, there is an equitable economic return. From the demand perspective, visitors are more aware and prefer environmentally friendly practices. They have an ecological outlook and know that the money they spend supports the community, while also contributing to the conservation of a natural area or even a species of flora or fauna.

And that remains the intent of the challenged Law: to generate low-impact development. Note that Article 6, which they seek to invalidate, clearly states: “The areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and terrestrial access area to the island, the lots, trails, and the designated beach areas, shall be subject to classification as a Tourism Zone (Zona turística).” Furthermore, Article 16 provides: “The Parque Nacional Isla San Lucas may develop all infrastructure necessary to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, piers, food services, access routes, and information and communication in various formats, as well as any infrastructure it deems appropriate for the benefit of visitors and to ensure the enjoyment and appreciation of the park’s historical, architectural, and natural wealth.

In the construction of docks, piers, and other maritime facilities, the Instituto Costarricense de Puertos del Pacífico (lncop), the Ministerio de Obras Públicas y Transportes (MOPT), and the Instituto Costarricense de Turismo (ICT) shall provide the corresponding technical support to the Board of Directors; these institutions are likewise authorized to construct and maintain the works identified in this provision.” The foregoing is consistent with what the Sala Constitucional stated in the judgment at issue when it affirmed, regarding sustainable tourism, that: (…) Note that the Constitutional Court itself has clearly stated that: 1- Development is viable in conjunction with environmental sustainability. 2- The objective of this sustainability is to protect and preserve the environment and its natural resources, in balance with economic diversification and improvement of the quality of human life. 3- An example is the Certification for Tourism Sustainability (Certificación para la Sostenibilidad Turística) issued by the Instituto Costarricense de Turismo as an extremely important component that demonstrates progress in protecting the right to a healthy and ecologically balanced environment while promoting economic diversity through tourism. 4- It also includes the Ley de Fomento del Turismo Rural Comunitario, which directs that optimal use be made of environmental resources, a fundamental element of tourism development, while maintaining essential ecological processes and helping to conserve natural resources and biological diversity.

5- Furthermore, there is the Global Code of Ethics for Tourism, which states that all stakeholders in tourism development have a duty to safeguard the environment and natural resources, with a view to sound, continuous, and sustainable economic growth capable of equitably satisfying the needs and aspirations of present and future generations. 6- Tourism infrastructure and activities must be planned so as to protect the natural heritage constituted by ecosystems and biological diversity. 7- Equitable access to development is not established only in urban areas. 8- The development of these legal initiatives creates access to development in terms of employment opportunities and quality of life. 9- Rural development based on tourism focused on natural and cultural heritage is constitutionally legitimate provided that it is sustainable. It is therefore clear that Article 6, which they allege is unconstitutional, merely reflects the sustainable-development objectives established by the Honorable Constitutional Court.

It is a clear summary of what that Chamber ruled. In addition, the UN proposed the Sustainable Development Goals, and, at the national level, all institutions are focused on achieving them. The country has several public and private institutions dedicated to promoting ecotourism and community-based tourism and to establishing networks for the development of sustainable tourism. It is therefore well known that one of the ICT’s priorities is to promote sustainable tourism through ecotourism or community-based tourism, and this law provides that promotional element. If private organizations in urban areas implement sustainable practices by establishing mechanisms related to nature conservation and contributing to the communities involved through corporate social responsibility activities, it is even more appropriate and obligatory to do so in Parques Nacionales. The petitioners (accionantes) are aware that when a Parque Nacional is established, the level of protection is greater.

It is relevant to note that this discourse on sustainability dates back to the 1980s and the Brundtland Report, when discussion had already begun concerning the existence of overpopulation coupled with the improper management of the planet’s resources. And because Costa Rica is visited for its biodiversity, the purpose of this Law is to carry out protection activities through low-impact tourism. It is also clear that a single Institution cannot financially sustain the project. Accordingly, a decision was made to include various institutions that may use their budgets for the project’s sustainable development. Moreover, that development creates tourism activity that directly generates employment, which is greatly needed in our society following the COVID 19 pandemic. For the foregoing reasons, Articles 6 and 16 are consistent with sustainable development and with the Constitutional Chamber’s rulings concerning Isla San Lucas.

(…) In other words, the master plan (plan maestro) sets the limit on the actions of the administrative authorities that will coordinate the sustainable development of Isla, without harming the environment or historical heritage. This is not the first time that a Legislative Decree has regulated the existence of a master plan. The most notable example is the one associated with the Proyecto Turístico Golfo de Papagayo. It should be noted that the Reglamento al Plan Maestro General del Polo Turístico Golfo Papagayo, as amended by the ICT Board of Directors at meeting 3765/2011 (La Gaceta 84 del 2/5/2012), highlights among its guiding principles respect for protected wilderness areas (áreas silvestres protegidas) and free access to beaches. This is demonstrated by the following articles: “Article 3.2 f: (…) “The ICT and concessionaires are required to guarantee free access to the public zone of the maritime-terrestrial zone (zona marítimo terrestre), which must be devoted to public use and the free movement of tourists.

Only (sic) in the exceptional cases expressly provided for by law may areas within the public zone of the maritime-terrestrial zone be granted as concessions.” Article 3.4 ibid.: Guiding principles concerning tourism space. “a) Free use of beaches and access to panoramic views: In accordance with the legal system currently in force, the fifty-meter-wide public zone of the maritime-terrestrial zone along beaches must be devoted to public use and the free movement of tourists. The Oficina Ejecutora is primarily responsible for issuing regulations and enforcing existing regulations that guarantee compliance with these legal requirements. Only (sic) in the exceptional cases expressly provided for by law may areas within the public zone of the maritime-terrestrial zone be granted as concessions.” “b) Respect for protected areas: (…)” In addition, every land-use plan (plan de uso del suelo) must be reviewed by the competent bodies, so that the regulations currently in force provide the relevant protective measures, which would apply to the reviews required for the master plan issued for Isla San Lucas.

To that end, the Minister of the Environment is a member of the Board of Directors. Furthermore, as the Chamber itself has stated in several of its judgments, every master plan must conform to zoning studies (estudios de zonificación) and zoning regulations (reglamentos de zonificación). The Constitutional Court itself limits the issuance of such instruments insofar as they must not be based on a reduction of the protected wilderness area. The petitioners are therefore aware, as the Constitutional Court has determined, that the master plan must undergo all technical regulatory procedures, with the participation of the competent institutions, including SINAC and SETENA. Moreover, this is an order from the Chamber itself, and the Law merely complies with that directive. In addition, an initial master plan is attached, in which the Honorable Constitutional Chamber may observe the effort to develop a project in accordance with the rulings issued by the Constitutional Court.

Note the group of entities that participated in developing the plan and that the enacted Law, together with a plan such as the one proposed, entails genuine coordination. It begins with the following statement: (…) Regarding the exclusion of the SINAC representative from the Board of Directors. On this point, the petitioners are likewise incorrect, because the head of the environmental portfolio is, by constitutional mandate, among those required to constitute the Board of Directors. Note that section 10 of the Law states: “The Board of Directors of Parque Nacional Isla San Lucas shall be composed of the following members: a) The Minister of Environment and Energy, who shall chair it and may be replaced by a deputy minister of that portfolio. b) The Minister of Culture, who may be replaced by a deputy minister of that portfolio. c) The Executive Presidency of Instituto Costarricense de Turismo (ICT), which may be replaced by the person holding the office of manager or by a member of the Board of Directors of that institute. d) A representative of the Executive Branch appointed by the Consejo de Gobierno, which shall also appoint an alternate. e) The Mayor of Municipalidad del cantón Central de Puntarenas, who may be replaced by a deputy mayor. f) The President of Cámara de Turismo de Puntarenas, who may be replaced by any member of that chamber’s Board of Directors.

The chair of the Board shall hold the body’s judicial and extrajudicial representation. The chair shall also have a casting vote under the terms of Article 49 of Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978. The members of the Board of Directors shall receive no attendance fees (dietas).” Accordingly, the assertion that the SINAC representative must occupy that position is without merit. Their arguments concern Article 1 of Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los países de América. However, that provision establishes definitions for a series of environmental legal institutions (institutos ambientales). On the contrary, with respect to Parques Nacionales, that provision states: “1.-Parques Nacionales shall mean: Regions established for the protection and conservation of natural scenic beauty and flora and fauna of national significance, which the public may best enjoy when placed under official oversight.” Based on the foregoing, there are no grounds for finding any unconstitutionality.

It should be noted that, as regards Isla San Lucas, official oversight will be associated with a Board of Directors that administers that Parque. And the head of the Republic’s environmental portfolio—the Minister of the Environment—will sit on that Board of Directors. Moreover, representation of SINAC falls to the Minister of Environment and Energy by virtue of the Minister’s position as President of CONAC, pursuant to Articles 24.1 of Ley de Biodiversidad and 10.1 of its regulations; the Minister also holds legal representation for the entire Environment and Energy portfolio pursuant to Article 7 of Reglamento Orgánico del MINAE, consistent with the Minister’s status as the ministry’s highest-ranking authority under Articles 25.2 and 28.1 of the LGAP. Based on the foregoing, the petitioners’ assertion is likewise without merit. Moreover, as stated by the Constitutional Chamber itself in the aforementioned judgment: (…) Thus, the Law did the same: it included the aforementioned entities in the Law and established clear powers (potestades) for the Board of Directors.

In other words, it implemented the spirit of the constitutional judgment. Regarding the use of private security personnel. This representative considers that Article 15 of the Law has been misinterpreted, thereby also violating the interpretive principle established in section 10 of Código Civil. Note that the aforementioned section 15 clearly states: “For the surveillance and security of Parque Nacional Isla San Lucas, the necessary complement of park rangers from Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente y Energía (Minae) shall be provided, without prejudice to the possibility that the Board of Directors, either directly or through the corresponding administrative trust (fideicomiso de administración), may hire whatever security it deems necessary; such personnel shall have no police authority and may not exercise nondelegable governmental functions (funciones indelegables propias de la administración).

It may also seek assistance from Ministerio de Seguridad in situations that warrant it.” Nor is there any reason to amend it or declare the Article unconstitutional. A literal reading of the aforementioned Article establishes that SINAC park rangers will perform surveillance and security duties. The Article states that, in the interest of providing greater protection for the Parque, the Board of Directors may take steps to hire private security to assist the park rangers with the surveillance and security of Isla San Lucas. This activity is common among the country’s various institutions and does not mean that powers are being transferred. In other words, it constitutes an expansion intended to ensure effective surveillance and security for the Parque. Regarding the assertion that concessions may not be granted within the Parque. The petitioners state that Article 7, together with Article 9, subsection l), establishes the possibility of granting concessions within the Parque by providing as follows: “Parque Nacional Isla San Lucas shall be governed by a master plan prepared on the basis of technical criteria.

For the fulfillment of the purposes established in this law, concessions (concesiones) and permits (permisos) may be granted in the tourism zone for activities and facilities other than park services. Lodging and gambling services shall not be permitted in this zone. In all cases, the participation of local organizations in the granting of concessions shall be promoted. Any jurisdictional dispute shall be resolved by the Minister of Environment and Energy.” It should again be noted that the master plan (plan maestro) will specify the activities for which a permit or concession may be granted; lodging activities and activities associated with casinos are prohibited. Furthermore, that plan, which must be approved by SINAC and SETENA, must analyze environmental matters. In addition, authority is granted to the Minister of Environment to resolve potential jurisdictional disputes. The foregoing entails the protection of the constitutional rights to the environment and to the protection of historical heritage.

It is reiterated that “sustainable tourism” derives from the concept of “sustainable development,” articulated by the Comisión Mundial sobre el Medio Ambiente y el Desarrollo de la Organización de las Naciones Unidas in 1987 as “development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs.” The Federación de Parques Naturales y Nacionales de Europa (F.P.N.N.E.), known as Federación EUROPARC, defines sustainable tourism as “any form of tourism development, management, and activity that perpetually maintains the environmental, social, and economic integrity and the well-being of the area’s natural and cultural resources.” In addition, Article 39 of the Ley de Biodiversidad provides that: “The Consejo Nacional de Áreas de Conservación is authorized to approve contracts and concessions for nonessential services and activities within state-owned protected wildlands (áreas silvestres protegidas), except for the exercise of responsibilities entrusted exclusively by this and other laws to the Executive Branch through the Ministerio de Ambiente y Energía (Minae), such as protection and surveillance, and the formulation and monitoring of strategies, plans, and budgets for conservation areas (áreas de conservación).

Under no circumstances may these concessions and contracts include authorization for third parties to access elements of biodiversity or to exploit natural resources, nor may they include the construction of private buildings. Nonessential services and activities shall include parking facilities, sanitary facilities, the administration of physical facilities, food services, shops, the construction and administration of trails, visitor management, and others defined by the Consejo Regional del Área de Conservación through a technical study that provides justification. These concessions and contracts may be granted solely and exclusively to community development associations, cooperatives, microenterprises registered with the Ministerio de Economía, Industria y Comercio (MEIC), or national nonprofit social organizations whose objectives include supporting the conservation of natural resources, which incorporate environmental management into their processes and the concession area, and whose legal status remains valid, provided that they are composed of and directly controlled by residents of communities located within the area of influence of the respective protected wildland.

The conservation areas shall provide these communities with extensive information regarding the services they decide to offer under concession and shall establish a registry of local organizations to ensure the greatest possible participation in contracting processes. The Instituto Nacional de Aprendizaje (INA), in coordination with other public educational entities and the respective municipalities, shall create training and technical instruction programs primarily aimed at communities located within the area of influence of protected wildlands, so that they may benefit from this provision. Concessionaires (concesionarios) or permit holders (permisionarios) shall submit satisfactory external audits conducted during the preceding year, all as determined by the Consejo Regional del Área de Conservación.” (As amended by the sole article of Law N° 9766 of 29 de octubre de 2019) Accordingly, what the petitioners contend is likewise not unconstitutional, as the cited article clearly provides that the Consejo Nacional de Áreas de Conservación may approve contracts and concessions for nonessential services and activities within state-owned protected wildlands.

A comprehensive analysis of the administrative legal framework (ordenamiento administrativo) must be conducted, as provided in Articles 6 and 7 of the Ley General de la Administración Pública. In addition, the Ministerio de Ambiente y Energía (Minae) must establish the approvals relating to protection and surveillance, the monitoring of strategies, and the plans and budgets of the conservation areas. For that reason, the Law anticipated this jurisdictional issue, which is to be resolved by the Minister of Environment. Moreover, the aforementioned Article 39 states that concessions and contracts may under no circumstances include authorization for third parties to access elements of biodiversity or exploit natural resources, nor may they include the construction of private buildings; thus, once again, the law already establishes the limit. Lastly, that provision specifies the nonessential services and activities: parking facilities, sanitary facilities, the administration of physical facilities, food services, shops, the construction and administration of trails, visitor management, and others defined by the Consejo Regional del Área de Conservación through a technical study that provides justification.

The parties eligible to receive these concessions and contracts are community development associations, cooperatives, microenterprises registered with the Ministerio de Economía, Industria y Comercio (MEIC), or national nonprofit social organizations whose objectives include supporting the conservation of natural resources, which incorporate environmental management into their processes and the concession area, and whose legal status remains valid, provided that they are composed of and directly controlled by residents of communities located within the area of influence of the respective protected wildland. Accordingly, the petitioners’ contention is likewise without merit. The limits on concessions are duly regulated by Article 39 of the Ley de Biodiversidad, which remains in force at the time of this response. Regarding the alleged uncertain funding, the challengers contend that Article 17 of the Law is unconstitutional.

That article provides that: “Parque Nacional Isla San Lucas shall have financial resources enabling it to carry out its mandates promptly and efficiently. These shall include the resources allocated to it by law from the Sistema Nacional de Áreas de Conservación (Sinac), transfers from the budgets of the Republic, or donations from any natural or legal person, as well as its own funds generated from admission to the park, use of its services, concession and permit fees, and, generally, payment for activities conducted within the park. The resources regulated by this law, as well as all resources generated by the park, shall necessarily and exclusively be invested in the national park itself. Oversight shall be the responsibility of the Contraloría General de la República. Article 18 then states that: “Authorization to donate and subsidize. The entire state, non-state, and financial public sector is authorized to make donations and investments and to include budgetary subsidies for Parque Nacional Isla San Lucas.

The Instituto Costarricense de Turismo (ICT) may transfer financial resources to the Junta Directiva del Parque Nacional Isla San Lucas for its development investments and ordinary activities; it may also design and carry out promotion and marketing to encourage visits to the park. The Junta Directiva may receive donations from international organizations and foreign governments interested in assisting with the park’s purposes.” In addition, Article 13 regulates the possibility of using a trust (fideicomiso). All of the foregoing is clear and duly regulated. It clearly establishes the sources of the funds; therefore, the circumstances asserted by the petitioners are nothing more than assumptions. Moreover, as with all matters involving public funds, the Contraloría General de la República will be required to exercise oversight. The manner in which the possible funding sources are established is consistent with law and, indeed, creates a better opportunity to obtain resources that would not be available if the park remained under the exclusive direction of SINAC.

AS A SUPPLEMENT TO ALL OF THE FOREGOING, the principal objective of the Law whose declaration of unconstitutionality is sought is to bring about the creation of a new national park and historical and architectural heritage site located on Isla San Lucas. As previously stated, Isla San Lucas is currently a protected wildland and therefore already falls within a management category (categoría de manejo); reclassifying it under the National Park category does not cause any greater impact on third parties or on the maritime-terrestrial zone (zona marítimo terrestre). Nor does it affect the Decrees mentioned above. Within its authority to approve bills, the Asamblea Legislativa may approve one such as that which has been alleged to be inconsistent with constitutional law. The legal status resulting from the creation of this park entails greater legal protection because regulations must be issued for the implementation of various rules.

The creation of the new national park, located on Isla San Lucas, entails action beyond that ordinarily required in the development of a national park, since it (sic) imposes obligations on various institutions. Furthermore, as already stated, Isla San Lucas is already a protected wildland, possesses historical and architectural heritage, and is open to tourist visits. In this regard, the Tribunal Constitucional has held that a coordinated approach must exist, which is clearly regulated by the Law that the petitioners seek to invalidate. Thus, with respect to the subject matter legislated, it is not only constitutional but also consistent with the reality of what Isla San Lucas truly is and represents: a protected zone, a historical zone, and a tourist attraction. The legislature directly involves the Instituto Costarricense de Turismo (ICT) in the following respects: 1.- As a member of the Junta Directiva established to oversee and make decisions regarding the administration of the National Park. 2.- In financial matters, by assigning it powers that entail budgeting the Institution’s funds for investment in the National Park, relating to the construction, maintenance, and restoration of the works. 3.- Through its experience in preparing Master Plans. 4.- Through its capacity to advise on the construction of docks, moorings, and other sustainable maritime facilities, which have been shown before the Tribunal Constitucional to provide greater environmental protection when the Comisión de Marinas y Atracaderos Turísticos participates in their development. 5.- In promoting the tourist destination.

In this regard, it should be noted that, because the Instituto Costarricense de Turismo has specialized units such as the Comisión Interinstitucional de Marinas y Atracaderos, in the development of docking facilities (atracaderos), the Departamento de Certificaciones y Responsabilidad Social Turística, and the Dirección de Mercadeo, its participation is relevant; hence, the participation of the ICT is vital even to generating the project’s economic development, as provided in Article 9 of the Law. In conclusion, the ICT is an important stakeholder because it is a member of the Board of Directors responsible for the administration and governance of Parque Nacional Isla San Lucas and for the obligations described herein. Following the pandemic, throughout the term of this Law, the ICT will have to include sufficient financial resources in its budget to cover the expenditures detailed in the Law.

Thus, this Law is clearly forward-looking and seeks to safeguard the public interest protected by our institution; it should be noted that no violations of the Constitution are apparent in its formulation. Quite the contrary, it complies with the instructions of the Sala Constitucional. For the foregoing reasons, this representative considers that the constitutional challenge (acción de inconstitucionalidad) should be denied because there are no constitutional defects (vicios de inconstitucionalidad) on which it could be based.”

1. 134By a written submission added to the digital case file on 23 de abril de 2021, José Bourret Marín, identity card 118400114, enters an active supporting intervention (coadyuvancia activa) on the same terms as those set forth in the written submission added to the digital case file on 8 de abril de 2021.
2. 135By a written submission added to the digital case file on 23 de abril de 2021, José Canales Morales, identity card 118440765, enters an active supporting intervention on the same terms as those set forth in the written submission added to the digital case file on 8 de abril de 2021.
3. 136By a written submission added to the digital case file on 23 de abril de 2021, Danny Villalobos, identity card 206430273, acting on behalf of the Federación Costarricense para la Conservación del Ambiente, enters an active supporting intervention and requests that the action be granted. He states: “VIOLATION OF THE PRINCIPLE OF SCIENTIFIC PROTECTION (PRINCIPIO DE TUTELA CIENTÍFICA) As the text of the challenged law was ultimately worded, several scientific studies are conspicuously absent, which ultimately results in regressive action and, from that standpoint, warrants granting the action. To begin with, provisions 3 and 6 of the legislation address the geographical delimitation of the island, both its marine and terrestrial portions. But no study authorizing a reduction in depth from 6 metros to 3 metros was ever conducted for that purpose, and this violates the principles of proportionality and reasonableness, and we request that it be so ruled.As you will see, the text of the law is absolutely clear in provision 3 when it provides: ‘... The coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m)...’ But why (sic), if before this law the decree governing the marine portion had provided that the island’s area extended to a depth of 6 metros, was the protection reduced? Furthermore, if that reduction in depth from 6 to 3 metros had in fact been justified, where was the foregoing environmentally offset by another area? (sic) As this Authority will understand, the violation of the principle of scientific protection is more than clear and, accordingly, this law must be declared unconstitutional. Article 6 of the law establishes an area designated as the WATER SECTOR. Certain geographic points are established for it, and the following is added: ‘Area of the polygon designated “Water Sector” 746209.m2, equivalent to 74ha6209, equivalent to 0.75 km2.’ The obvious and salient question is: on the basis of what scientific criteria was that zone or sector established?Given that there is no rationale for it, the information gap is more than clear. It should be clarified that it is evident that, following constitutional decision No. 13099-2010, an additional 210 hectáreas were added to those already protected; but what happened to that area, which was plainly not contemplated or incorporated into that water sector? Why is there uncertainty concerning those 201 hectáreas? They are supposed to remain protected, but under what type of management? Why distinguish between an area designated as a national park and another designated as a refuge? Since nothing is clear, the action should be granted. As will be understood, the marine portion has been neglected, and with it all its biodiversity and archaeological wealth, since it must be recognized that there are many documented shipwrecks around the island; for that reason, I request that the action be granted.In this regard, I request that an opinion be sought from the Museo Nacional. As to the terrestrial portion, both Article 3 and Article 6 of the provision establish differentiated sites, but there is NO scientific justification validating this, and biodiversity in terms of flora and fauna could therefore be placed at risk. It is more than clear that the fragmentation of the terrestrial portion into areas receiving different treatment is intended to accommodate commercial concessions (see Articles 9 subsection d and 14 subsection g), and this is unconstitutional in a national park insofar as the Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América itself prohibits such uses. That convention states: ‘ARTICLE III.... The resources existing therein shall not be exploited for commercial purposes.’ We request that it be observed and acknowledged that the Park has enormous scenic wealth; the concessions are therefore intended to exploit that wealth and enable the business owners (sic) who obtain concessions to profit.For all these reasons, we request a declaration of unconstitutionality for violation of principles of environmental law and even of the aforementioned convention. VIOLATION (sic) OF THE PRINCIPLE PROHIBITING THE REDUCTION (sic) OF PROTECTED WILDLIFE AREAS (ÁREAS SILVESTRES PROTEGIDAS) Along the same lines, the granting en bloc of commercial concessions and concessions for essential and non-essential activities or services could result in decisions by the board of directors that would administer the park being made solely in pursuit of profit, which could lead to irreversible damage. We are not saying that the services profit and this could lead to irreversible damage. We are not saying that essential and non-essential services cause damage, but rather that damage would result from the impact of the aggregate activities that would take place, some of which would be commercial, as authorized by the challenged provision itself in Articles 9 subsection d and 14 subsection g. Taken together, it is clear that Article 3 of the law and G resulted in dividing the park into zones without any studies having been conducted; worse still, this amounts to a tacit reduction of sites that until now had been designated for the protection and regeneration of ecosystems.Therefore, although the entire island remains a protected wildlife area, there is a tacit attempt to open it to activities that could cause environmental harm and damage. We do not say this merely for the sake of saying it; rather, your Authority must view it in this manner, since no study assessing the challenged segmentation was ever conducted. We cannot conclude without stating that we consider it entirely unconstitutional to authorize the construction of docks and ports in this park, since this should not be permitted in a place such as Isla San Lucas, whose marine and terrestrial portions have undergone a period of regeneration over the years. In truth, opening the park to concessions for companies that will arrive with ships or boats at different piers is irrational in a national park and could even violate constitutional provision 89 by adversely affecting the landscape. The marine landscape could also be affected by vessels entering and leaving the site because of the aforementioned facilities, which do not currently exist.No prior study measuring the impact of constructing piers or docks was ever conducted; Article 16 of the law is therefore constitutionally defective. For all the reasons stated, we request that the entire law be declared unconstitutional. For these purposes, we request a ruling that we have standing (legitimación) to bring the action because diffuse interests (intereses difusos) are involved. Our grounds are constitutional provisions 50 and 89.”
4. 137In a written submission added to the digital case file on 23 de abril de 2021, Julio Jurado Fernández appeared in his capacity as Attorney General of the Republic. He explains that: “I SUBJECT MATTER OF THE ACTION THE PLAINTIFF’S STANDING DERIVES FROM A DIFFUSE INTEREST (INTERÉS DIFUSO) THAT EXISTS IN THIS AREA The action being processed under expediente 21-5756-007-CO was filed seeking a declaration that Ley N.° 9892 de 24 de agosto de 2020 is unconstitutional. In summary, the arguments on which the plaintiffs base their action may be synthesized as follows. The plaintiffs consider Ley N.° 9892 unconstitutional because it reduces the protected wildlife area (área silvestre protegida) without technical justification by reducing the marine area. They also argue that a change in management has occurred and that a tourism zone has been created that modifies land use (uso del suelo) without support from technical criteria.They further allege that the Law assigns commercial purposes to the tourism zone that are incompatible with the environmental protection of a protected wildlife area. They then contend that the national park’s governance model violates environmental protection by excluding the Sistema Nacional de Áreas de Conservación, and that the protection regime is also violated by allowing private security services to be hired. Finally, they consider it unconstitutional because it authorizes the possibility of granting concessions in a protected wildlife area and because its financing is uncertain. The plaintiffs’ standing is based on the diffuse interest constitutionally recognized in connection with environmental protection. II LEY N.°9892: A CHANGE IN THE MANAGEMENT CATEGORY (CATEGORÍA DE MANEJO) OF ISLA SAN LUCAS Ley N.° 9892 de 24 de agosto de 2020 created Parque Nacional Isla San Lucas, thereby modifying the management category that had applied until then to that Protected Wildlife Area.By Decreto Ejecutivo N.° 29277 de 11 de enero de 2001, the Executive Branch declared Isla San Lucas a National Wildlife Refuge (Refugio Nacional de Vida Silvestre). Ley N.° 9892 modifies the management category of Isla San Lucas. Article 1 of that Law created Parque Nacional Isla San Lucas. The provision in question is transcribed below: ARTICLE 1-Creation. Parque Nacional Isla San Lucas is hereby created and, in addition to its status as a protected wildlife area, shall constitute historical-architectural heritage and a sustainable tourism-use zone, in the specific areas determined by this Law. However, Ley N.° 9892 not only created Parque Nacional Isla San Lucas but also incorporated a sector of the Island into the historical-architectural heritage and created a so-called “Sustainable Tourism-Use Zone” (“Zona de Aprovechamiento Turístico Sostenible”) on the Island. Article 5 of Ley N.° 9892 declared that the group of buildings comprising the former “San Lucas” prison is to be incorporated into the Nation’s Historical-Architectural Heritage.The provision requires the Ministerio de Cultura to prepare and keep current an inventory of that heritage for its preservation. ARTICLE 5- Cultural and historical significance. The group of buildings comprising the former San Lucas prison is hereby declared historical-architectural heritage; the State shall restore and preserve this heritage for the enjoyment and knowledge of present and future generations. The Ministerio de Cultura shall prepare an inventory of the aforementioned heritage and its state of preservation, updating it periodically, and shall communicate all such information to the Ministerio de Ambiente y Energía (MINAE) and to the entity responsible for administering the island.” Article 6 of Ley N.° 9892 creates a so-called “Tourism Zone” (“Zona Turística”) on Isla San Lucas. Ley N.° 9892 created a National Park on Isla San Lucas, yet at the same time the provision designated a series of areas of Isla San Lucas—areas delimited by the Law—as a Tourism Zone.Under Ley N.° 9892, the areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and land access area to the island, the parcels, trails, and certain beach areas, are designated as a Tourism Zone. The relevant portion of Article 6 is transcribed below: ARTICLE 6- Tourism Zone. The areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and land access area to the island, the parcels, trails, and the specified beach areas, shall be designated as a Tourism Zone. Section 6 divides the Tourism Zone into four sectors: a) the Historical Sector, b) the Playa El Coco Recreation Sector, c) the Trails Sector, and d) the Waters Sector. It should be noted that the Tourism Zone totals 138 hectares out of the 462 hectares comprising the total area of Isla San Lucas. Article 3 of the Law delimits the entirety of Parque Nacional Isla San Lucas and establishes that the Park has a land portion and a coastal-marine area.In its final part, the provision establishes that, within the two foregoing areas, there must be an area subject to differentiated management (manejo diferenciado) devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourism Zone. ARTICLE 3- Boundaries. Parque Nacional Isla San Lucas shall consist of a land portion and a coastal-marine area. The land portion shall consist of the insular portion of Isla San Lucas, located in the Golfo de Nicoya, on the Instituto Geográfico Nacional map sheet entitled Golfo, Edición 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an area of four hundred sixty-two hectares (462 ha). The coastal-marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m).Within the two foregoing areas, there shall be an area subject to differentiated management devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourism Zone. In light of Article 3, it must be understood that the Master Plan (Plan Maestro) provided for in Article 7 of Ley N.° 9892 must incorporate a differentiated management model for the Tourism Zone of Isla de San Lucas. This differentiated management model, while based on technical criteria, must promote sustainable tourism. In this regard, Article 7 itself authorizes the administration to grant concessions and permits in the Tourism Zone for activities and facilities other than park services, although lodging and gambling services are not permitted. Article 7 of Ley N.° 9892 thus established that the so-called Tourism Zone of Isla San Lucas must be administered under a management model differentiated from the management plan for the rest of the National Park.It follows from the foregoing that the Tourism Zone of Isla San Lucas is not only allocated to a specific public purpose, namely the promotion of sustainable and inclusive tourism, but its management must also conform to a differentiated management plan—as compared with that of the National Park—devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest. In summary, Ley 9892 created Parque Nacional Isla San Lucas; nevertheless, that same Law also created within that National Park an area equivalent to one-fifth of the Protected Wildlife Area that must be administered under a management plan differentiated from that of the rest of the National Park. This area is allocated to a specific public purpose, namely the promotion of sustainable tourism. It should be noted that, although Article 3 of Ley N.° 9892 provides that the National Park must contain a Tourism Zone and an Area devoted to Conservation, the Law contains few and cursory provisions and regulations concerning the management of the Protected Wildlife Area, particularly its environmental management.Article 4.a provides that one of the Park’s purposes is the conservation of natural heritage. Article 9.b establishes that one of the functions of the Park’s Board of Directors is to contribute to the environmental protection and conservation of the National Park. In its final part, Article 9 also establishes that, in matters concerning the conservation and preservation of historical-architectural heritage, the determination of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail and that, with respect to the protection of wildlife and the conservation of the island’s biodiversity, the technical determination of the Sistema Nacional de Áreas de Conservación shall prevail. Although Ley 9892 creates Parque Nacional Isla San Lucas, it contains no specific regulation governing the management of the portion of the island that constitutes the conservation area itself.III NATIONAL PARKS ARE PROTECTED WILDLIFE AREAS OF ABSOLUTE PROTECTION Pursuant to Article 32 of the Ley Orgánica del Ambiente, National Parks are a type of Protected Wildlife Area. They are distinguished from other types of protected wildlife areas by their management category. Article 58 of the Ley de Biodiversidad establishes that, in general, Protected Wildlife Areas are devoted to the conservation and protection of biodiversity, soil, water resources, cultural resources, and ecosystem services. “ARTICLE 58.- Protected wildlife areas Protected wildlife areas are delimited geographical zones consisting of land, wetlands, and portions of the sea. They have been declared as such because of their special significance arising from their ecosystems, the existence of threatened species, their importance for reproduction and other needs, and their historical and cultural significance. These areas shall be devoted to conserving and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general.The objectives, classification, requirements, and mechanisms for establishing or reducing these areas are determined in Ley Orgánica del Ambiente, No. 7554, de 4 de octubre de 1995. The prohibitions applicable to natural and legal persons within national parks and biological reserves are established in Ley de la Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977. During the process of fulfilling the requirements for establishing state protected wildlife areas, the respective technical reports must include the pertinent recommendations and justifications for determining the most appropriate management category to which the proposed area should be subject. In all cases, the establishment of areas and categories shall give substantial consideration to rights previously acquired by Indigenous or rural populations and other natural or legal persons located within or adjacent to them.” Specifically, National Parks are terrestrial, marine, coastal-marine, or freshwater geographical areas, or a combination thereof (sic), of national importance, established for the protection and conservation of natural beauty and biodiversity, as well as for public enjoyment.These areas contain one or more ecosystems in which the species, habitats, and geomorphological sites are of special scientific, cultural, educational, and recreational interest, or they contain a natural landscape of great beauty. (See Article 70 of the Reglamento a la Ley de Biodiversidad, Decreto Ejecutivo N.° 34433 de 11 de marzo de 2008) Article 18 bis of the Ley Forestal classifies National Parks as protected wildlife areas subject to absolute protection.”

Article 12 of the Ley del Servicio de Parques Nacionales establishes that concessions may not be granted in a National Park for the exploitation of products from national parks, nor may permission be granted to establish facilities other than those of the Servicio Nacional de Parques Nacionales. ARTICLE 12.- No concessions of any kind may be granted for the exploitation of products from national parks, nor may permission be granted to establish facilities other than those of the Service. Consistent with the foregoing, in judgment N.° 16975-2008 at 14:53 hours on 12 de noviembre de 2008, the Sala Constitucional held that granting concessions in National Parks is incompatible with the objectives of strict-conservation Protected Wilderness Areas (Áreas Silvestres Protegidas), namely National Parks and Biological Reserves: “A concession is the standard means of utilizing areas within the maritime-terrestrial zone (zona marítimo terrestre) administered by the Municipalities (Ley 6043, art. 39), and is incompatible with the objectives of certain Protected Wilderness Areas subject to strict conservation, such as national parks and biological reserves.

For that reason, the Decree would be contrary to the Ley de Parques Nacionales, N° 6084 (art. 12), which prohibits granting concessions for the exploitation of products from national parks or for establishing facilities other than those of the Área de Conservación del MINAE, formerly the Servicio de Parques Nacionales. In turn, the Ley de Biodiversidad, N° 7788, artículo 39, contains another prohibition against granting concessions within state-owned protected wilderness areas that authorize third-party access to biodiversity components or the construction of private buildings.” Pursuant to section 18 bis of the Ley Forestal, the use (aprovechamiento) of surface-water sources in national parks may also be authorized when supported by a public-interest justification. In accordance with judgment of the Sala Constitucional N.° 17397-2019 at 12:54 hours on 11 de setiembre de 2019, such use is justified only (sic) by constitutional values, particularly because the State must guarantee access to drinking water and thereby protect the fundamental right to enjoy that resource.

Judgment N.° 17397-2019 defined the conditions and requirements for using water sources in national parks and biological reserves: “In this regard, it may be observed that the challenged regulations establish a series of requirements and restrictions governing water use within the State Natural Heritage (patrimonio natural del Estado). For a better analysis, these requirements and restrictions will be set forth. First, the article grants the Ministerio de Ambiente y Energía the authority to authorize the use of water from surface sources and the construction, operation, maintenance, and improvement of water-supply systems on properties forming part of the State Natural Heritage, provided that the following requirements are met: The existence of a prior declaration of public interest issued by the Poder Ejecutivo; The existence of an urgent need to supply the population through authorized water-service providers, such as the Instituto Costarricense de Acueductos y Alcantarillados, the Municipalidades, the Empresa de Servicios Públicos de Heredia, and the Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados; The works must be carried out on the basis of technical studies, seeking the lowest possible environmental impact in accordance with the applicable environmental impact assessment instrument (instrumento de evaluación de impacto ambiental) and in strict compliance with current environmental regulations; in particular, the works must comply with the provisions governing the technical criteria applicable to intervention in protected wilderness areas set forth in Ley No. 7788, Ley de Biodiversidad, de 30 de abril de 1998, and its regulations.

Likewise, this article provides greater protection for strictly protected wilderness areas, such as national parks and biological reserves. These additional requirements are as follows: Compliance with artículo 38 de la Ley N.º 7554, Ley Orgánica del Ambiente, de 4 de octubre de 1995; The technical studies conducted must demonstrate that no other alternative source is available to guarantee an adequate quantity and quality of water for the beneficiary population; The proposed activities must receive prior technical approval from the Instituto Costarricense de Acueductos y Alcantarillados.” In National Parks, sport and small-scale fishing (pesca deportiva y artesanal) are permitted only after a favorable opinion from the Consejo Asesor de Parques Nacionales and provided it is demonstrated that they will not cause ecological alterations. (Artículo 10 de la Ley de Parques Nacionales) Although artículo 8 de la Ley de Parques Nacionales allows visitors to be received, that same provision clearly prohibits any kind of commercial, agricultural, or industrial activity within the respective park.

In other words, the tourism received by national parks does not justify seeking to conduct commercial, agricultural, or industrial activities within them. It is important to note that the possibility of national parks receiving visitors falls within the concept of ecotourism (ecoturismo). Artículo 18 de la Ley Forestal establishes the possibility of authorizing ecotourism activities within the State Natural Heritage, including National Parks. Ecotourism is an activity intended to preserve a natural environment, with emphasis on its biological, physical, and cultural features, through a controlled process that guarantees minimal environmental impact. It must be ecologically sustainable, involve low-impact tourism activities, and benefit the local community while providing a satisfactory experience for visitors. The regulatory definition of ecotourism appears in inciso n) del artículo 2 del Reglamento a la Ley Forestal, Decreto Ejecutivo N.° 25721 de 17 de octubre de 1996, as amended by Decreto Ejecutivo N° 35868 del 24 de marzo de 2010) In judgment of the Sala Constitucional N.° 16975-2008 at 14:53 hours on 12 de noviembre de 2008, the Court held that it is invalid to authorize, particularly in national parks and biological reserves, tourism activities other than ecotourism that instead reflect “a new economic orientation that provides less protection than the previous regime for strict conservation areas or national parks.” That judgment stated: IX.- Lastly, the challenged Decree repeals artículo 11 del Reglamento a la Ley Forestal (art 9° del Decreto 31750), which provided: “The research and ecotourism activities contemplated in artículo 18 de la Ley, when involving lodging facilities within areas of the State Natural Heritage, shall be limited to rustic structures consistent with the natural surroundings and intended primarily to lodge researchers and secondarily tourists, provided they do not interfere or compete with the well-being of local populations in the buffer zone (área de amortiguamiento).” It restricted construction to rustic structures permitted within the State Natural Heritage, which were more consistent with ecotourism, whereas the Decree authorizes a new economic orientation that provides less protection than the previous regime for strict conservation areas or national parks.

In addition to eliminating the requirement for rustic structures, the Decree (artículo 3°) permits buildings of up to three stories and the use of substantial areas, without specifying where they will be located, in carrying out projects and activities (15% of the concession area for primary forests and 25% for secondary forests), with the resulting environmental transformations or alterations to developed land. Public wilderness areas, of which the State is the guardian, comprise fragile ecosystems of great biodiversity, damage to which may have irreversible consequences and prevent the long-term preservation of resources. The foregoing requires careful assessment of the environmental costs and social benefits associated with projects and activities to be carried out within them.-“Authorization of ecotourism activities in a national park or biological reserve must be subject to scientific and technical sustainability criteria.

In this regard, reference should be made to judgment of the Sala Constitucional N.° 13099-2010 at 14:56 hours on 4 de agosto de 2010, concerning Decreto Ejecutivo N.° 34282 “Decreto que rectifica, delimita y amplia los límites del Refugio Nacional de Vida Silvestre Isla San Lucas y declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla”: This Sala considers that rural development based on tourism focused on natural and cultural heritage is constitutionally legitimate so long as it is sustainable. Accordingly, if science and technology suggest imposing certain limits on the sizes of visitor groups, during particular periods, and so forth, those limits could not be deemed unconstitutional because they respond to sustainability criteria, without disregarding the various international provisions that safeguard the right to enhance the value of assets belonging to national history, not only as national heritage assets but as the heritage of all humanity, and restricting public access to them is not legitimate.

Pursuant to artículo 11 del reglamento a la Ley Forestal, only (sic) training, ecotourism, and research activities may be conducted in Protected Wilderness Areas when they are subject to the provisions of the respective Management Plan (Plan de Manejo). In Protected Wilderness Areas other than National Parks and Biological Reserves, ecotourism activities may be conducted solely and exclusively in the zones established by the Sistema Nacional de Áreas de Conservación in accordance with the zoning of each Protected Wilderness Area. Under no circumstances may the ecotourism zone entail allocating that portion of the protected wilderness area to any purpose other than protecting ecosystems, guaranteeing environmental preservation, and safeguarding natural and cultural resources. IV DESPITE CREATING A NATIONAL PARK, LEY N.° 9892 REDUCES THE LEVEL OF ENVIRONMENTAL PROTECTION FOR ISLA SAN LUCAS Ley N.° 9892 established Isla San Lucas as a national park.

Decreto Ejecutivo N.° 29277 de 11 de enero de 2001 had created a National Wildlife Refuge (Refugio Nacional de Vida Silvestre) on that island. Wildlife refuges are geographical areas containing terrestrial, marine, marine-coastal, freshwater, or combined ecosystems. Their principal purposes are the conservation, research, enhancement, and management of wild flora and fauna, especially species at risk of extinction. Ecotourism is authorized in state-owned refuges. (See artículo 70 del Reglamento a la Ley de Biodiversidad, Decreto Ejecutivo N.° 34433 de 11 de marzo de 2008) Decreto Ejecutivo N.° 34282 de 25 de enero de 2008 declared the sustainable tourism development of Isla San Lucas to be of national interest and high priority. Artículo 2º-The sustainable tourism development of the island under the terms of this Decree, as well as the conservation and restoration of the buildings of the former prison on Isla San Lucas, is hereby declared to be of national interest and high priority.

Agencies of the Public Administration and the Private Sector, within their respective legal frameworks, may contribute financial resources, to the extent of their capabilities and without prejudice to the fulfillment of their own objectives, to support the sustainable tourism development (desarrollo turístico sostenible) of the Island. However, in the aforementioned voto N.° 13099-2010, it was clarified that: “The declaration that sustainable tourism development is of national interest and a high priority, as stated in section 2, must be understood to be constitutional provided that the conservation and restoration of the buildings of the former penal colony and those constructed in connection with its existence are confined to work involving the conservation, protection, and improvement of their surroundings. The same must apply to the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies to which they must be subject.” Pursuant to article 5 of Decreto Ejecutivo N.° 34282, tourism activity on Isla San Lucas was required to comply with a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible), which was to include an environmental-impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve the objectives of economic, social, and environmental development, as well as the protection of the cultural heritage of that specific area.

The Sustainable Tourism Development Master Plan was required to be submitted to the Secretaría Técnica Nacional Ambiental del Ministerio de Ambiente and the Ministerio de Cultura, Juventud y Deportes for approval, in accordance with the requirements and procedures established by the legal system. Voto N.° 13099-2010 also stated that any economic or productive activity that affects or uses the environment, particularly the ecosystems of National Parks and, specifically, Isla San Lucas, must adhere to the philosophy of sustainable development (desarrollo sostenible), according to the impact it has on the environment, because controlling the repercussions that it may cause to the environment is constitutionally significant. Voto N.° 13099-2010 is transcribed again: IX.- On the implications of sustainable development and tourism.- The cornerstone of development is environmental sustainability (sustentabilidad ambiental), whose objective is to protect and conserve the environment and its natural resources, in balance with economic diversification and the improvement of the quality of human life.

The central idea underlying the principles of environmental law (principios de derecho ambiental) lies in the rational use of natural resources, together with the protection of the environment to ensure sustainability for present and future generations. Any economic or productive activity that affects or uses the environment must adhere to the philosophy of sustainable development, according to the impact it has on the environment; in that regard, because the Executive Branch relies on these types of objectives for economic and social development, this Chamber finds that rural tourism (turismo rural), as such, must uphold those values that protect sustainable development, because it cannot be an exception, and controlling the repercussions that it may cause to the environment is constitutionally significant. Tourism activity in the former Refugio Nacional de Vida Silvestre de San Lucas was required to be strictly subject to technical criteria that would ensure the possibility of maintaining a natural environment on the Island, with emphasis on its biological, physical, and cultural features, through a controlled process that would guarantee minimal environmental impact (mínimo impacto ambiental).

The regulations then in force required tourism activities on the Island to have a low impact. Under Decreto Ejecutivo N.° 34282, infrastructure development in the Refugio Nacional de Vida Silvestre de la Isla San Lucas was required to be compatible with the principles of environmental sustainability and with its protection and conservation. The construction of large-scale infrastructure projects was prohibited, because this would entail a substantial land-use change (cambio de uso del suelo). Voto 13099-2010 is transcribed again: Infrastructure development must be compatible with the principles of environmental sustainability and with its protection and conservation; conversely, it would be constitutionally questionable if projects were undertaken without regard for the protection regimes (regímenes de protección) in force on the Island, such as the construction of large-scale infrastructure projects, given that the continued application of the protected-area regime (régimen como área protegida) would entail a substantial land-use change, unlike the human-built structures that existed long before the Island was declared an Área Silvestre Protegida and historical-architectural heritage.

Under the Refugio Nacional de Vida Silvestre management category (categoría de manejo), infrastructure built on San Lucas for tourist use was required to be strictly limited to the areas of the historical complex and the road leading to Playa Cocos. The facilities constructed were to be only those strictly necessary to meet the basic needs of visitors and tourism-development agents, without this meaning that development could extend beyond projects compatible with a “green” philosophy or that were not in keeping with the site’s carrying capacity (capacidad de ocupación); all of this was to be ensured sustainably, in accordance with science and technology. Voto N.° 13099-2010 is cited again: Regarding infrastructure intended for tourist use, it (sic) must be strictly limited to the areas of the historical complex, the road leading to Playa Cocos, and the latter (sic); the facilities to be constructed shall be only those strictly necessary to meet the basic needs of visitors and tourism-development agents, without this meaning that development may extend beyond projects compatible with a “green” philosophy or that are not in keeping with the site’s carrying capacity; all of this must be ensured sustainably, in accordance with science and technology.

This Court recognizes that achieving the conservation and restoration of the Island’s buildings, as well as enhancing their value, is a genuine challenge, including—for example—the wooden houses located in the place known as “Las Jachas” and its surroundings, the Enfermería, the Capilla, the Edificio de Administración, and other infrastructure necessary to provide limited nature-tourism and ecotourism services, provided that sustainability criteria are met; otherwise, this would give rise to a conflict of constitutional significance with articles 50 and 89. Subsections a) and b) of section 5 must be understood to be constitutional insofar as the objectives of the Master Plan comply with the findings of this Chamber, particularly to the extent that the zoning studies (estudios de zonificación) and zoning regulations (reglamentos de zonificación) are not based on reducing the protected wilderness area by 5.5% of the area.

Although Ley N.° 9892 has established that Isla San Lucas is to be a national park—which should afford a higher level of protection to the natural, cultural, and historical resources of Isla San Lucas—the fact remains that Ley N.° 9892 reduces the level of protection afforded to the Island. Ley N.° 9892 creates a national park on Isla San Lucas, but it has also created, on the same Island, a so-called Sustainable Tourism Use Zone (Zona de Aprovechamiento Turístico Sostenible), referred to for all purposes as the Tourism Zone (Zona Turística). Article 6 of Ley N.° 9892 has designated a series of areas of Isla San Lucas—areas delimited by the Law and equivalent to one-fifth of its total area—as a Tourism Zone. Under Ley N.° 9892, the areas corresponding to the buildings of the former San Lucas prison, including the pier, as well as the marine and terrestrial access zone to the Island, the properties, the trails, and certain beach areas, are designated as a Tourism Zone.

A combined reading of sections 3 and 7 of Ley N.° 9892 shows that the Island’s Master Plan must incorporate a differentiated management model (modelo de gestión diferenciado) for the Tourism Zone of Isla de San Lucas. Although it must be based on technical criteria, that differentiated management model must place greater emphasis on promoting sustainable tourism activity than on criteria for the conservation and preservation of natural and cultural resources. Nor is this Master Plan required to be submitted for approval by the Secretaría Técnica Nacional Ambiental. Under Ley N.° 9892, the Tourism Zone of Isla San Lucas is not only allocated to a specific public purpose other than environmental protection—namely, promoting sustainable and inclusive tourism—but is also managed under a management plan (plan de manejo) distinct from that of the National Park, which is devoted to regulating sustainable tourism activity and promoting and developing sites of historical, architectural, and environmental interest.

For the foregoing reasons, and although Ley N.° 9892 has created a National Park, the fact remains that its enactment and promulgation entail a change in the activities permitted in a significant area of Isla San Lucas. It should be noted that section 6 of that Law provides that four sectors—namely, a) the Historical Sector, b) the Playa El Coco Recreation Sector, c) the Trails Sector, and d) the Waters Sector—form part of a Tourism Zone; this is equivalent to 138 hectares out of the total 462 hectares comprising Isla San Lucas. In this zone, Ley N.° 9892 allows activities compatible with tourism development, a purpose distinct from environmental and cultural protection. In this regard, it is important to note that article 2 of Ley N.° 9892 has declared the tourism development of Isla San Lucas to be of national interest and a high priority. Pursuant to article 2, the Island’s sustainable tourism development is to be carried out without prejudice to the functions of conserving and restoring its natural and cultural heritage.

ARTICLE 2- National interest. The sustainable tourism development of the Island, under the terms of this Law, and the conservation and restoration of the buildings of the former prison of Isla San Lucas are hereby declared to be of national interest and a high priority. Agencies of the Public Administration and the Private Sector, within their respective legal frameworks, may contribute financial resources, to the extent of their capabilities and without prejudice to the fulfillment of their own objectives, to support the sustainable tourism development of the Island. However, the tourism activity authorized by Ley N.° 9892 is not ecotourism, and particularly is not the tourism activity considered compatible with the management category of a national park. It has already been explained in this report that ecotourism is an activity, or set of activities, intended to maintain a natural environment, with emphasis on its biological, physical, and cultural features, through a controlled process that guarantees minimal environmental impact and that must also be ecologically sustainable.

It involves low-impact tourism activities, is beneficial locally, and is satisfying for visitors. Inherent in the concept of ecotourism permitted in National Parks is the requirement, set forth in article 12 of the Ley de Parques Nacionales, that no concessions may be granted in a National Park for the exploitation of products from national parks, nor may permission be granted to establish facilities other than those of the Servicio Nacional de Parques Nacionales. The objective of Ley N.° 9892 is instead tourism development on Isla San Lucas that emphasizes economic considerations and the conceptualization, marketing, and promotion of the Island as a tourist attraction.

For this purpose, Ley N.° 9892 provides for a Master Plan (Plan Maestro) establishing the model for the systematic tourism development of the Island. This Master Plan is not subject to the approval of the Secretaría Técnica Nacional Ambiental. Ley 9892 grants the Board of Directors (Junta Directiva) of Parque Nacional Isla San Lucas authority to define sustainable tourism activities that encourage tourism and visits to the island. These activities include commercial, transportation, sports, artistic, and cultural activities that encourage tourism and visits to the island. In addition, the Law authorizes the Board of Directors to enter into agreements for the provision of commercial services on the island. Article 9 is transcribed below: ARTICLE 9—Duties and powers. The Board of Directors of Parque Nacional Isla San Lucas shall have the following powers: a) To define strategies and policies aimed at the consolidation and development of the park. b) To contribute to the environmental protection and conservation of the national park. c) To establish guidelines for the protection, restoration, and administration of historic buildings; to develop facilities and services for visitors’ rest and recreation; to enable and ensure the accessibility of land and maritime routes and port facilities; and, in general, to provide all basic services. d) To define environmentally sustainable tourism activities, whether commercial, transportation-related, sports-related, artistic, or cultural, that encourage tourism and visits to the island. e) To approve the strategic marketing and promotional objectives necessary to publicize Parque Nacional Isla San Lucas both within and outside the country. f) To approve authorizations, use permits (permisos de uso), and concessions (concesiones) for carrying out works and providing services in the Tourism Zone (Zona turística).

Works relating to areas declared to be heritage sites shall be coordinated with the Ministerio de Cultura. g) To approve the Master Plan for the National Park, as well as the corresponding programs, plans, and budgets. h) To approve the administrative structure required for the institutional management of the park. i) To approve, renew, amend, or revoke any trust (fideicomiso) relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and persons. It shall determine admission prices for the national park and approve contracts for the various reservation and purchasing systems. j) To approve the use of public-works concessions involving public services and mutually beneficial contracting with nonprofit entities. e) To approve the strategic marketing and promotional objectives necessary to publicize Parque Nacional Isla San Lucas both within and outside the country. f) To approve authorizations, use permits, and concessions for carrying out works and providing services in the Tourism Zone.

Works relating to areas declared to be heritage sites shall be coordinated with the Ministerio de Cultura. g) To approve the Master Plan for the National Park, as well as the corresponding programs, plans, and budgets. h) To approve the administrative structure required for the institutional management of the park. i) To approve, renew, amend, or revoke any trust relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and persons. It shall determine admission prices for the national park and approve contracts for the various reservation and purchasing systems. j) To approve the use of public-works concessions involving public services and mutually beneficial contracting with nonprofit entities. telecommunications, hygiene and sanitation, docks, mooring facilities, food services and access routes, information and communication in various formats, as well as anything else it deems appropriate for the benefit of visitors and to ensure the enjoyment and appreciation of the park’s historical, architectural, and natural wealth.

In the construction of docks, mooring facilities, and other maritime facilities, the Instituto Costarricense de Puertos del Pacífico (lncop), the Ministerio de Obras Públicas y Transportes (MOPT), and the Instituto Costarricense de Turismo (ICT) shall provide the corresponding technical support to the Board of Directors; these institutions are likewise authorized to construct and maintain the works referred to in this provision. It is therefore clear that the tourism activities authorized by Ley N.° 9892 are incompatible with the concept of ecotourism, because they reflect a primarily economic orientation and provide for the development of infrastructure that is not limited to what is strictly necessary to meet visitors’ basic needs, but instead entails the construction on the island of a complex providing commercial, transportation, food, and other services—excluding hotels and casinos.

Moreover, it should be noted that the infrastructure development contemplated by Ley N.° 9892 is not necessarily required to comply with technical sustainability criteria. As explained above, under the challenged Law, the management and development of the so-called Tourism Zone must be governed by criteria different from those applicable to the rest of the National Park. It should next be noted that the declaration of national interest and high priority for the tourism development of Isla San Lucas, provided for in Article 2 of Ley N.° 9892, is incompatible with the holding in ruling N.° 13099-2010 of the Sala Constitucional that any declaration of tourism interest applying to a protected wilderness area (área silvestre protegida) must be confined to conserving, protecting, and improving its environment. It must also comply with the principle of objective grounding of environmental protection (principio de objetivación de tutela ambiental).

Article 2 under discussion is transcribed again: ARTICLE 2—National interest. The sustainable tourism development of the island under the terms of this Law, as well as the conservation and restoration of the buildings of the former prison on Isla San Lucas, are hereby declared to be of national interest and high priority. Within their respective legal frameworks, agencies of the Public Administration and the private sector may contribute financial resources, to the extent of their capabilities and without prejudice to the fulfillment of their own objectives, in order to support the island’s sustainable tourism development. It is evident that the declaration in Article 2 is incompatible with a philosophy of sustainable development that seeks to control the effects tourism activity on Isla San Lucas may have on the environment. It must therefore be emphasized that, although Ley N.° 9892 established Isla San Lucas as a national park—which should afford a higher level of protection to the natural, cultural, and historical resources of Isla San Lucas—the fact remains that Ley N.° 9892 reduces the island’s level of protection.

Compared with the protection regime applicable to Isla San Lucas under Decreto Ejecutivo N.° 34282—which declared the Island a National Wildlife Refuge (Refugio Nacional de Vida Silvestre)—the protection regime afforded by the challenged Law is substantially weaker. This is so even though Ley N.° 9892 creates a National Park. Moreover, it must be taken into account that, whether designated as a wildlife refuge or a national park, the Island is a protected wilderness area and, as such, forms part of the State’s national heritage, pursuant to Article 13 of the Ley Forestal. This means that, in accordance with Article 18 of that same law, the only activities that should be permitted are research, training, and ecotourism. However, as we have explained, by creating a Tourism Zone for the development of sustainable tourism, the challenged law permits activities other than those inherent to ecotourism.

In our view, this constitutes a reduction in the level of environmental protection insofar as it allows the range of activities that may potentially be permitted to be expanded. That, however, is not unconstitutional in itself if it is technically and scientifically demonstrated that such an expansion will not adversely affect the environment or compromise the ecosystem-conservation purposes inherent in the management category (categoría de manejo), as this Constitutional Court has held in its case law when deriving the principles of non-regression (no regresión) and objective grounding of environmental protection from Article 50 of the Constitution. In this regard, it should be emphasized that no technical studies have been included in the legislative record (expediente legislativo) to justify the possibility of creating the so-called Tourism Zone, allocating a portion of the island to tourism development, or developing new infrastructure on the island beyond what is strictly necessary for visitors and personnel.

The fact is that, under Ley N.° 9892, a significant portion of the Island has been allocated to a purpose other than environmental protection—namely, the promotion of sustainable tourism development—and Ley N.° 9892 also permits the granting of concessions other than those necessary for park services, as well as the development of infrastructure enabling the construction on the island of a complex providing commercial, transportation, food, and other services—excluding hotels and casinos—that is incompatible with the concept of environmental protection applicable to a national park. In any event, it must be emphasized that the governance model for the Island created by Ley N.° 9892 has the tourism development of the Island as its primary objective. Article 4 of that Law provides that, in addition to preserving its heritage, the authorities must contribute to the socioeconomic development of the Golfo de Nicoya; promote sustainable and inclusive tourism to serve (sic) domestic and foreign visitors; and ensure enjoyment, recreation, and the provision of facilities and amenities for inclusive tourism visitation.

Furthermore, the primary function of the Board of Directors’ powers is to develop tourism infrastructure on the Island and to promote and market the Island as a tourist destination. All of this, of course, also reduces the level of environmental protection afforded to Isla San Lucas. Admittedly, the Law’s provision that any future trust may hire private security is not, per se, unconstitutional; however, it would be unconstitutional to provide for the use of the trust to develop tourism in a protected wilderness area where, because of its impact, such development would entail a reduction in the level of environmental protection. Accordingly, Ley N.° 9892 is deemed to violate Article 50 of the Constitution by infringing the principles of progressivity (progresividad) and non-regression in environmental matters and the principle of objective grounding of environmental protection. This is because Ley N. 9892 entails the adoption of a provision that reduces, without reasonable and proportionate justification, the environmental protection afforded to Isla San Lucas and thereby weakens the guarantee of a healthy and ecologically balanced environment.

It also violates the principle of objective grounding of environmental protection because Ley N.° 9892 is not based on technical, objective, and verifiable criteria. Regarding these principles, the following judgments of the Sala Constitucional should be cited: V. On the principles of progressivity and non-regression in environmental protection.

The principle of progressive realization of human rights (principio de progresividad de los derechos humanos) has been recognized by International Human Rights Law; among other international instruments, it is enshrined in Article 2 of the International Covenant on Economic, Social and Cultural Rights, Articles 1 and 26 of the American Convention on Human Rights, and Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. Under these provisions, the State assumes the obligation to progressively increase, to the extent permitted by its capabilities and development, the levels of human-rights protection, with special consideration for rights that, like the right to the environment (art. 11 of the Protocol), require multiple affirmative actions by the State to ensure their protection and full enjoyment by all rights holders.

The principle of non-regression or irreversibility of benefits or levels of protection already attained (principio de no regresividad o de irreversibilidad de los beneficios o protección alcanzada) derives from the principle of progressive realization of human rights and the principle of non-retroactivity of rules to the detriment of vested rights and settled legal situations (principio de irretroactividad de las normas en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas), enshrined in section 34 of the Constitution. This principle serves as a substantive guarantee of rights—in this case, the right to a healthy and ecologically balanced environment—under which the State is required not to adopt measures or policies, or enact legal rules, that, without reasonable and proportionate justification, worsen the level of rights attained up to that time. This principle does not entail absolute irreversibility, since all States experience domestic circumstances of an economic, political, or social nature, or caused by natural events, that negatively affect the achievements attained up to that time and require the new level of protection to be reconsidered downward.

In such cases, Constitutional Law and the principles under examination require any reduction in levels of protection to be justified in light of the constitutional standards of reasonableness and proportionality. (Voto N.° 5994-2017 de las 11 horas del 26 de abril de dos mil diecisiete) IX.- Regarding the principle of objective grounding of environmental protection (principio de objetivación de la tutela ambiental). This principle concerns the need for all protection afforded to the right to a healthy and ecologically balanced environment, as well as the relevant regulation, to be based on technical, objective, and verifiable criteria. Consistent with the foregoing, the applicable regulations provide that any change in the status of springs (nacientes) must necessarily be technically documented and substantiated, precisely because these are circumstances that can be verified through the aforementioned unequivocal rules of science and technology, which, in turn, permits review of the decisions adopted by the Administration in this regard.

Case law from this same Chamber has been discussed and cited to that effect—judgments 2004-1923 and 2017-11803—and, under that standard, which requires every modification relating to this matter to be technically documented and supported, it is ruled out that the word “permanent,” or any change in the classification of a spring so that it is no longer considered permanent but intermittent, inherently entails an infringement of the principle of objective grounding of environmental protection. On the contrary, the duty to provide technical support for these changes fully complies with this principle. Accordingly, the alleged infringement of this principle must likewise be dismissed. (Voto N.° 9221-2019 de las 11:41 horas del 22 de mayo de 2019) Finally, it should be noted that Ley N.° 9892 provides in Article 3 that the coastal marine area consists of the waters surrounding the island, to a depth of up to three meters.

This entails a reduction, not justified by technical criteria, in the area of the protected wildlife area (área silvestre protegida), because under the Executive Decree creating the Wildlife Refuge, Article 3 of Decreto N.° 29277 de 11 de enero de 2001, the protected area extended seaward to a depth of 6 meters. Regarding the reduction of wildlife areas, particularly in reference to San Lucas, Constitutional Chamber judgment 13099-2010 may again be cited: The arguments in the three consolidated constitutional challenges (acciones de inconstitucionalidad) share as a common denominator the alleged violation of constitutional Article 50 due to noncompliance with Article 38 of the Ley Orgánica del Ambiente. To declare the provision unconstitutional, it is sufficient to establish that the mandate set forth in the latter section was breached by modifying the size of the protected wildlife area.

Section 38 states: “The surface area of protected wildlife areas, which constitute the State’s natural heritage, whatever their management category, may be reduced only by a Law of the Republic, after conducting the technical studies that justify such a measure.” Accordingly, the Executive Branch may not reduce these areas without complying with the legislative and technical procedure; for this reason, the Chamber partially grants the claim and annuls Article 1° solely insofar as it excludes from the protected area of the Isla San Lucas National Wildlife Refuge the “5.5% of the current area for the protection of cultural heritage,” due to infringement of constitutional Articles 11, 50, and 89, but not insofar as it adds the marine sector and islets, since the Executive Branch is permitted to do so by Executive Decree. V CONCLUSION In conclusion, this Advisory Body considers that Ley N.° 9892 de 24 de agosto de 2020 is constitutionally defective.”

1. 138In a written submission added to the digital case file on 26 de abril de 2021, Sylvie Durán Salvatierra enters an appearance (se apersona) in her capacity as Minister of Cultura y Juventud. She states: “It is the opinion of this Institutional Head that the constitutional challenge (acción de inconstitucionalidad) filed and its principal grounds require a specialized technical opinion in order to be addressed, which this Ministry lacks, since the matters involved relate strictly to the conservation of protected wilderness areas (áreas silvestres protegidas) on Isla San Lucas, which falls within the legal jurisdiction of other Ministries of the Executive Branch. Notwithstanding the foregoing, it is necessary to mention several aspects of relevance to the challenge filed, namely: as transcribed above, the challenged Law mentions the Ministerio de Cultura y Juventud in Articles 5, 9, and 10.With respect to Article 5, we see that the Law alleged to be unconstitutional declares the group of buildings of the former San Lucas penitentiary to be architectural-historical heritage (patrimonio histórico arquitectónico), imposing upon this Ministry the duty to prepare an inventory of that heritage and its state of conservation. In addition, the final paragraph of Article 9 of the challenged law provides that, in matters concerning the conservation and preservation of architectural-historical heritage, the opinion of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y Juventud shall prevail. Notwithstanding the foregoing, Ley 7555 de Patrimonio Histórico Arquitectónico de Costa Rica of 27 de setiembre de 1995 provides as follows in Article 3: ‘Article 3. The State has the duty to conserve the country’s architectural-historical heritage. The Ministerio de Cultura, Juventud y Deportes is the highest authority in this field and shall provide the necessary advice to the owners, possessors, or holders of rights in rem (derechos reales) over the properties comprising that heritage, so that the purposes of this law may be fulfilled.’ In light of the foregoing, since the enactment of Ley 7555, this Ministry has therefore been responsible for safeguarding the conservation of architectural-historical heritage, for which purpose it established a specialized administrative unit known as the Centro de Investigación y Conservación del Patrimonio Cultural.Accordingly, the obligations imposed by the Law now being challenged are to be monitored and complied with by this Center, pursuant to clear instructions from Ley 7555 itself and from this Ministerial Office. In this regard, we can verify that the relief sought by the petitioners does not disclose or allege any actions related to this Ministry, and it is therefore beyond its jurisdiction to submit a report on the aspects of Ley 9892 alleged to be unconstitutional. That said, and for the reference of this honorable Constitutional Court, it is relevant to cite Voto 2010-015388, issued at seven hours fifty-two minutes on veintiséis de marzo de dos mil diez by the Sala IV de la Corte Suprema de Justicia, which, insofar as relevant, held as follows: (…) The foregoing demonstrates that an area possessing exceptional values of various kinds (environmental, tourism-related, and cultural) may readily exist and be subject to shared management by the Ministries involved.In the example cited, the location known as Antigua Zona Americana de Quepos had been declared part of the State’s natural heritage (patrimonio natural del Estado) pursuant to Decreto Ejecutivo No. 35325-MP-MINAET (sic) of junio de 2009, when this Ministry initiated the declaration of the buildings at that location as part of the country’s Architectural-Historical Heritage (as they are exceptional banana-company houses dating from the early twentieth century). Accordingly, after carrying out the corresponding administrative procedure, through Decreto Ejecutivo Nº 37329-C, published in Alcance N° 153 to La Gaceta N° 198 of 12 de octubre del 2012 , the State formally declared the area part of the Architectural-Historical Heritage of Costa Rica, thus confirming that two types of heritage declarations (cultural and natural) may coexist harmoniously for the benefit of the community, with each being managed, within the scope of its jurisdiction, by the respective body of the Executive Branch.Ergo, it is concluded that, insofar as this Ministry is concerned, a declaration of cultural heritage value (architectural-historical) may coexist with other declarations of a tourism-related and/or environmental nature, with each Ministry being required to address and fulfill its own obligations arising from the highly specialized legal framework applicable to it.”
2. 139In a written submission added to the digital case file on 26 de abril de 2021, Francisco San Lee Campos, identity card 107500349, files an active intervention in support (coadyuvancia activa) on the same terms as the written submission added to the digital case file on 8 de abril de 2021.
3. 140In a written submission incorporated into the digital case file (expediente) on April 26, 2021, Eduardo Newton Cruickshank Smith appeared in his capacity as President of the Asamblea Legislativa. He states: “I. BACKGROUND Processing of Ley 9892. The procedural aspects of Ley 9892 are detailed below: Ley 9892, “Creation of the Parque Nacional Isla San Lucas,” was considered under legislative case file (expediente legislativo) N° 21287. The original text of the bill was published in Alcance 102, Gaceta 84 of May 08, 2019. On March 06, 2019, the bill was assigned to the Comisión Permanente Especial de Turismo for the corresponding committee report (dictamen) (See page 28). Consultations with institutions and their respective responses: Page 59 contains official letter AL-DESTCO-068-201 9 from the Departamento de Servicios Técnicos concerning the Report on Mandatory Consultations pursuant to article 126 of the Reglamento de la Asamblea Legislativa regarding Bill 21 .287: -Comisión Nacional de Patrimonio Histórico y Arquitectónico; the institutional response appears on pages 159 to 161. -Comisión Nacional de División Territorial Administrativa. -Instituto Geográfico Nacional; the institutional response appears on pages 119 to 123. -Instituto Costarricense de Turismo; the response from the Gerencia General appears on pages 106 to 116.ICT submitted an addendum to its response; see pages 201 to 203. Response from Municipalidad de Puntarenas, Pages 21 3 to 227. -Instituto de Acueductos y Alcantarillados; the response appears on pages 196 to 199. Volume 2. -Instituto Costarricense de Electricidad. -Instituto Costarricense de Puertos del Pacifico; the institutional response appears on pages 101 toI1 04. (page 52) A consultation motion (moción) was approved in Minutes No. 1 of June 6, 2019; see page 59. The consultation motion also included the Sistema de Áreas de Conservación; see page 154. A motion was approved to consult the following institutions regarding the case file: Comisión Nacional de División Territorial Administrativa, Comisión Nacional de Patrimonio Histórico y Arquitectónico, Instituto Geográfico Nacional, Instituto Costarricense de Turismo, Municipalidad del Cantón Central de Puntarenas, Instituto Costarricense de Acueducto y Alcantarillados, Instituto Costarricense de Electricidad, Instituto Costarricense de Puertos del Pacífico, and Sistema Nacional de Áreas de Conservación.(Pages 58 to 61). Pages 63 to 100 contain consultation notices sent to the institutions and acknowledgments of receipt of those notices by the institutions. At Ordinary Session N°9 of October 10, 2019, page 251, a procedural motion (moción de orden) was approved to summon the Concejo Municipal de la Municipalidad de Puntarenas to a hearing, as well as to consult MINAE and the Procuraduría General de la República regarding the case file, 252, 256 and 268 to 271. MINAE’s response appears on pages 272 to 273. The Cámara nacional de turismo comunitario (CANTURURAL) and Cámara Nacional de Ecoturismo were consulted. Legal Report AL -DEST-IJU-006-2020 of the Departamento de Servicios Técnicos, dated January 21, 2020, appears on pages 290 to 311). At Ordinary Session N°1 dated June 06, 2019, the case file was assigned to a Subcommittee for its respective review, page 60. Once the deadline expired, the subcommittee was reconstituted, and the deadline for the subcommittee report was extended.There is no record that a subcommittee report was submitted. Committee Report At extraordinary session number 15 of January 22, 2020, the bill was submitted to a vote on the merits (votación por el fondo), because the period granted and extended by the Committee for issuing its report on the bill was about to expire, pursuant to article 80 of the Reglamento de la Asamblea Legislativa. The bill was approved unanimously. On January 29, 2020, the Comisión Permanente Especial de Turismo delivered the case file, together with the Unanimous Favorable Committee Report, to the Secretaría del Directorio (Appearing on pages 312 to 324). First Debate: At Extraordinary Plenary Session Number 37 of August 10, 2020, with forty-five votes in favor and one against, the case file was approved at the First Debate stage. (Appearing on page 855). First Report on Motions under Rule 137: 20 motions approved and 28 rejected (See pages 347 to 353).Second Report on Motions under Rule 137: 12 motions approved and 34 rejected (See report on pages 563 to 570). Motions under Rule 137 on pages 354 to 409. Motion to Waive Reading on page 410 and motions for reconsideration (revisiones) on pages 411 to 458. Second Debate At Extraordinary Plenary Session Number 39 of August 13, 2020, with thirty-nine votes in favor and zero against, the case file was approved in Second Debate. (Appearing on page 928). II. REGARDING THE CONSTITUTIONALITY CHALLENGES Before responding to each challenge, it is necessary for the Sala Constitucional to consider the relevant legal and factual matters outlined below concerning the origin, development, and status of Isla San Lucas. These matters were analyzed by the legislators through historical, regulatory, and case-law background; responses to consultations with specialized institutions; and descriptions of events that occurred on that Island, as well as through the discussion of texts, motions, studies, and reports, all of which is documented in the five volumes of the legislative case file, each containing approximately 250 pages.Information supporting Ley 9892, Ley de Creación del Parque Nacional Isla San Lucas. It begins with relevant aspects of the legal regime governing Isla San Lucas. First, it cites Ley 5469, Ley de traspaso de la Isla San Lucas a la Municipalidad de Puntarenas. In enacting law number 5469 of April 25, 1974, the legislature provided for the transfer of ownership of the Island to the Municipalidad de Puntarenas. The purpose was to place San Lucas under municipal administration so that it could be used as a tourist center, for which purpose the Instituto Costarricense de Turismo (ICT) was assigned responsibility for preparing the corresponding Tourism Development plan. For its part, the law governing the maritime-terrestrial zone (zona marítimo-terrestre) provided that “the island of San Lucas shall retain its current legal status under the administration of the Municipalidad de Puntarenas” (article 78).Specifically, Ley 9892 repeals articles 2 through 8 of that Ley 5469. While that law—and consequently the administrative powers of the Municipalidad—remained in force, the Executive Branch issued decree number 29277-MINAE (of January 11, 2001), declaring as a National Wildlife Refuge (Refugio Nacional de Vida Silvestre, RNVS-ISL) “. a terrestrial portion consisting of Isla San Lucas, located in the Golfo de Nicoya, on the IGN map sheet known as Golfo, Edition 3-IGNCR, at North Latitude 9° 56' and West Longitude 84° 54. 5', with an area of 4,62 km. Squares, and the coastal marine area, consisting of the waters surrounding the island to a depth of up to 6 meters” (article1°), and transferred administration of the Island to the Ministerio del Ambiente y Energía (MINAE). In addition, the Sala Constitucional heard constitutional challenge (acción de inconstitucionalidad) No. 03-006587-0007-CO, filed by the Alcaide de la Municipalidad de Puntarenas against Decreto Ejecutivo No. 29277-MINAE, de once de enero de 2001, alleging violations of two principles: municipal autonomy and the regulatory nullification of a law of the Republic.The alleged violations were rejected by the Chamber in judgment 2004-08928 at sixteen hours and thirty-seven minutes on the eighteenth of August, two thousand four. The Chamber stated that the enactment of Ley Orgánica del Ambiente, Ley 7554 del 4 de octubre de 1995, vested the Executive Branch with authority to establish or delimit protected wild areas (áreas silvestres protegidas), a situation that the Chamber’s case law deemed constitutional. Another relevant precedent is that Isla San Lucas was designated a site of historical interest by Decreto 24520-C in 1995. Subsequently, the Ministerio de Cultura, through Decreto Ejecutivo No. 30714-C del 26 de septiembre de 2002, declared and incorporated the Island into the Patrimonio Histórico Arquitectónico de Costa Rica. In this regard, the Sala Constitucional stated: (…) In 2008, Decreto 34282 TUR-MINAET-C (sic) de 25 de enero de 2008 corrected, delimited, and expanded the boundaries of the Wildlife Refuge.This decree was the subject of a constitutional challenge that was partially upheld by resolution No. 13099-2010 de 4 de agosto de 2010. In that resolution, the Chamber outlined and defined a constitutional framework concerning the regulation of Isla San Lucas. We therefore consider it relevant to note that Ley 9892 incorporates certain aspects of Decreto 34282 TUR-MINAET-C (sic) de 25 de enero de 2008, but above all to bear in mind that Ley 9892 was designed to conform to the provisions of judgment 13099-2010 of the Sala Constitucional, because the findings of this Court largely justify and support the proposal set forth in the law in light of the legally protected interests and rights involved, which must be safeguarded through appropriate regulation of Isla San Lucas. In that resolution, the Chamber stated: (…) Ley 9892 proposes harmonious and balanced regulation of Isla San Lucas, taking into account several matters of constitutional relevance and matters addressed by international conventions and instruments, such as the fundamental right to a healthy and ecologically balanced environment, the protection of the Patrimonio Nacional y Cultural, and sustainable tourism (turismo sostenible).In this regard, the Sala Constitucional stated (…) Within the constitutional framework described above, this Presidency will now address each of the challenged matters: 1.- Regarding the alleged reduction of the protected wild area without any justification The petitioners challenge the law on mistaken premises; accordingly, the reasons demonstrating that Ley 9892 is not unconstitutional in any respect, does not affect any fundamental right or constitutional principle, and does not violate or contradict constitutional provisions such as article 7, 50 and 89 of the Constitución Política, as the petitioners wrongly assert, will be set forth. Nor does Ley 9892 contravene international conventions, treaties, or instruments or adversely affect any human right, and it is not true that the law affects the conventions identified by the petitioners, such as the Convención sobre Conservación de Humedales de importancia internacional y sitios de Aves Migratorias (RANSAR), the Convenio para la Conservación de la Biodiversidad y Protección de Áreas silvestres prioritarias para América Central, the Convenio sobre la Diversidad Biológica, and the Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, sociales y culturales, Protocolo de San Salvador.Nor does the law affect the Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, Ley 3763, and no article of the Convención Americana de Derechos Humanos is violated. Contrary to the petitioners’ assertions, the principle of non-reduction (principio de irreductibilidad) of protected wild areas has not been infringed. Quite the opposite: Ley 9892 seeks to fulfill international commitments concerning human rights and environmental law (derecho ambiental), as well as to guarantee everyone’s right to a healthy and ecologically balanced environment. The petitioners are incorrect in alleging that Ley 9892 reduced the protected area of the Refugio de Vida Silvestre Isla San Lucas. What Ley 9892 did was create the Parque Nacional Isla San Lucas over a large portion of the area of the Refugio de Vida silvestre Isla San Lucas, but it did not reduce any area.

It must be made clear that Law 9892 does not provide for any type of reduction of Refugio de Vida Silvestre Isla San Lucas; it is neither reduced nor eliminated. What the law does is create a national park, which is a category affording greater protection, and designate specific areas as having special characteristics duly substantiated in the legislative record. Law 9892 creates and delineates Parque Nacional Isla San Lucas, comprising a land portion and a coastal marine area, and establishes that within the two areas there shall be a space called the Tourism Zone (Zona turística), devoted to sustainable tourism (turismo sostenible) and to the promotion and development of sites of historical, architectural, and environmental interest. The law further provides that this space shall be subject to differentiated management (manejo diferenciado). This is therefore a special law, given the combination of characteristics and elements involved, and, contrary to what the petitioners (accionantes) allege, its purpose is to preserve the natural, historical, cultural, archaeological, architectural, and environmental heritage.

It should be noted that Sala Constitucional annulled Decreto 34282 TUR-MINAET-C (sic) de 25 de enero de 2008, but left intact the area comprising the waters surrounding Isla San Lucas to a depth of 6 meters; the expansion that took place was recognized as valid by Sala Constitucional, as an authority of Poder Ejecutivo. It is extremely important to point out that this measure has not been changed by Law 9892. Although the National Park that is created encompasses a large part of the Refuge, some spaces remain a protected wilderness area (área silvestre protegida). In fact, what the law does is afford a large part of the Island—or, more precisely, the Refuge—a category of greater protection. The Constitutional Court is therefore requested to dismiss that allegation as unfounded. 2. Regarding the alleged change in management category (categoría de manejo) and the inclusion of a tourism zone without studies Again, the petitioners proceed from mistaken premises.

The Constitutional Court is therefore requested to analyze this point while taking into account that the legislators had access not only to the legislative record and the documents contained therein, but also to all the background materials concerning Isla San Lucas that were available to them and were objectively studied to substantiate the creation of the National Park and the tourism zone. Ley Orgánica del Ambiente provides that two requirements must be met in order to reduce the surface area of protected areas (áreas protegidas): the reduction must be carried out through a Law of the Republic and, second, it must be justified by technical studies (estudios técnicos). Nevertheless, it bears repeating that Law 9892, Ley de Creación el Parque Nacional Isla San Lucas, does not reduce the protected wilderness area in any way. In any event, Asamblea Legislativa approved this law following a valuable discussion that resulted in revisions to improve the texts.

Ultimately, it was approved by a majority of legislators who were convinced that the creation of Parque Nacional Isla San Lucas is constitutional, because this law was formulated in accordance with the course charted by the cited 2010 judgment of Sala Constitucional. The legislature likewise considered that this law ensures greater environmental protection for Isla San Lucas. As shown by the information in the record, the creation of the Park is also based and grounded in the importance of preserving and publicizing the historical, architectural, and archaeological heritage that exists on Isla San Lucas and undertaking the necessary enhancement (puesta en valor) of assets constituting cultural and historical heritage. It was also considered that Sala Constitucional conducted an on-site inspection (vista) at Isla San Lucas for its 2010 decision and was able to document the condition of Isla San Lucas.

It likewise recognizes the need to enhance the cultural heritage; however, as it correctly states, cultural heritage is intended, to the extent permitted by its conservation, to be known by both Costa Rican nationals and foreigners and to be appreciated by present and future generations. Thus, Parque Isla San Lucas, created by this law, serves to enhance the historical and cultural heritage and those areas of the Island that visitors may appreciate through sustainable tourism, all in conjunction with environmental protection. Regarding the concept of the “enhancement” of Isla San Lucas, Sala Constitucional stated (…) “VII.- Regarding the protection of cultural heritage. -imminent disappearance” C.- CONSTITUTIONAL PROTECTION OF CULTURAL HERITAGE. ARTICLES 50 AND 89 OF CONSTITUCIÓN POLÍTICA. XVI.- DELIMITATION OF THE SCOPE OF APPLICATION AND LEGAL-CONSTITUTIONAL BASIS. The importance of protecting cultural heritage at the national, regional, and international levels is beyond dispute.

During the judicial inspection (reconocimiento judicial) of 4 de junio de 2010, this Constitutional Court, as well as the parties and supporting intervenors (coadyuvantes) appearing in the proceedings, observed the visible lack of maintenance, over several decades, of the buildings located on Isla San Lucas, the need to take action to halt the advanced deterioration suffered by the infrastructure existing there (and by the wooden structures that once existed at the site), and the urgent need to prevent its disappearance. There is also the historical testimony provided by archaeological sites belonging to cultures that lived on the island, whose protection is owed not only because of the historical function that had been assigned to it as a penitentiary. “…The declaration that sustainable tourism development is of national interest and high priority… must be understood as constitutional so long as the conservation and restoration of the buildings of the former prison and those constructed in connection with its existence are confined to work involving the conservation, protection, and improvement of their surroundings.

The same must apply to the archaeological sites and the cemetery located at Playa Cocos, (...). With respect to infrastructure intended for tourist use, it (sic) must be strictly limited to the areas of the historical complex, the road leading to Playa Cocos, and Playa Cocos itself (sic); the facilities to be built shall be only those strictly necessary to meet the basic needs of visitors and tourism-development operators. (...) This Court recognizes that achieving the conservation and restoration of the Island’s buildings, as well as their enhancement—including, for example, the wooden houses located at the place known as ‘Las Jachas’ and its surroundings, the Infirmary, the Chapel, the Administration Building, and other infrastructure needed to provide limited nature-tourism and ecotourism services—constitutes a genuine challenge, provided that sustainability criteria are met; otherwise, it would give rise to a conflict of constitutional significance under Articles 50 and 89.

The need to enhance the assets located on Isla San Lucas is the primary reason Parque Nacional Isla San Lucas is created. It is for this reason that the sustainable tourism development of the island, as well as the conservation and restoration of the buildings of the former Isla San Lucas penitentiary, is declared to be of national interest and high priority. Parque Nacional Isla San Lucas is delineated in its land portion and coastal marine area. It must be borne in mind that the purposes of the Park include preserving the natural, historical, cultural, archaeological, and architectural heritage and, very importantly, contributing to the socioeconomic development of Golfo de Nicoya and promoting sustainable and inclusive tourism (turismo inclusivo) to accommodate (sic) Costa Rican and foreign visitors, as well as providing enjoyment, recreation, facilities, and amenities for inclusive tourist visitation.

Nor should it be overlooked that the Law provides that the administration of the Island is entrusted to Ministerio de Ambiente y Energía (MINAE), and that Ministerio de Cultura is to report the inventory of historical, cultural, archaeological, and architectural assets to MINAE. Furthermore, the Tourism Zone is delineated in the law and includes the buildings of the former Presidio San Lucas, the pier, the marine and land access areas to the island, the properties, the trails, and the specified beach areas. It must likewise be considered that the law provides that the Park shall be governed by a Master Plan (Plan Maestro) based on technical criteria. Most importantly, the law provides that any jurisdictional conflict (conflicto de competencias) shall be resolved by Ministerio de Ambiente, which, in any event, has among its responsibilities the formulation, planning, and implementation of policies concerning natural resources and environmental protection.

In addition, Ley Forestal, Ley No. 7575, establishes as an essential and priority function of the State the duty to ensure the conservation and protection of natural forests; accordingly, the cutting or harvesting (aprovechamiento) of forests in national parks, biological reserves, mangroves, protected zones, wildlife refuges, and State-owned forest reserves is prohibited. Instituto Costarricense de Turismo (ICT), for its part, has the responsibility of protecting and publicizing buildings or sites of historical interest, as well as places of natural beauty or scientific importance, keeping them intact and preserving native flora and fauna in their own environment. In conclusion, the claims of unconstitutionality (inconstitucionalidades) asserted by the petitioners on this point are rejected because technical studies are mandatory when protected wilderness areas are reduced or when it is necessary to demonstrate that there is no harm to the environment.

In the case of Law 9892, however, greater protection is afforded to the fundamental right to a healthy and ecologically balanced environment, while the National and Cultural Heritage is protected at the same time. In any event, the National Park category is substantiated by the documentation contained in the legislative record. Furthermore, it should be noted that the powers of the Park’s Board of Directors include: -defining strategies and policies aimed at the consolidation and development of the Park; contributing to the environmental protection and conservation of the National Park; -establishing guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services for visitors’ rest and recreation, enabling and ensuring access to land and maritime routes and port structures, and, in general, providing all basic services; -defining environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visitation to the island; and approving the strategic marketing and promotional objectives needed to publicize Parque Nacional Isla San Lucas both within and outside the country. 3.

Regarding commercial purposes disguised as sustainable purposes in the fragmentation of the Protected Wilderness Area (Área Silvestre Protegida) The unfounded arguments made by the petitioners on this point cannot be accepted, since they are based on unsupported assumptions advanced in support of their request for a declaration of unconstitutionality (declaratoria de inconstitucionalidad). It is clear that the regulations governing the National Park permit only those activities that are consistent with achieving the purposes of that law, the economic and social development of Golfo de Nicoya, the preservation of historical and cultural heritage, and the purposes of the law generally, and that do not conflict with the protection of natural resources and sustainable tourism.

The Park’s Board of Directors shall be governed in its structure, organization, and operation by Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978. Likewise, every law introduced into our single legal system must coexist with the rules in force in accordance with the rules governing the application of law; accordingly, the bodies, institutions, or organizations acting within the framework of this law are required to act in accordance with the applicable standards of responsibility and within the limits imposed by the legal system itself, for example, the Ley de Contratación Administrativa, Ley contra la corrupción y el enriquecimiento ilícito, etc., etc. The resources available to the Park must be duly administered as provided by law, and all management activities, trusts, investments, infrastructure development, infrastructure-development permit proceedings, or concessions must be carried out under the oversight of the Contraloría General de la Republica.

Accordingly, the petitioners’ improper assertion that this law conceals other (sic) purposes cannot be accepted under any circumstances. 4. Regarding the Board of Directors that will administer the Park. The petitioners’ arguments are without merit and are therefore categorically rejected with respect to the alleged unconstitutionality of the composition of the Park’s Board of Directors. The petitioners’ assertions that the Park will not be subject to official State oversight or administration and that SINAC has been excluded from oversight of the Park are erroneous. The law provides that, for the governance and administration of Parque Nacional Isla San Lucas, a Board of Directors shall be created as a body with maximum administrative autonomy (desconcentración máxima), attached to the Ministerio de Ambiente y Energía (MINAE), with instrumental legal personality (personalidad jurídica instrumental) for the exercise of its powers.

The Board of Directors of Parque Nacional Isla San Lucas shall consist of the ministers or presidents of the following: Ministerio de Ambiente y Energía, Ministerio de Cultura, Instituto Costarricense de Turismo (ICT), the Mayor of the Municipalidad del cantón Central de Puntarenas, and one representative each from the Poder Ejecutivo and the Cámara de Turismo de Puntarenas. The powers of the Park’s Board of Directors include: defining strategies and policies aimed at the consolidation and development of the Park; contributing to the environmental protection and conservation of the national park; establishing guidelines for the protection, restoration, and administration of historic buildings; developing facilities and services for visitors’ rest and recreation; enabling and ensuring accessibility by land and sea routes; developing port facilities and, in general, providing all basic services; defining environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island; and approving the strategic marketing and promotional objectives needed to publicize Parque Nacional Isla San Lucas both within and outside the country.

It should be noted that the Board’s membership brings together high-level officials from State institutions; the Board itself is a body with maximum administrative autonomy and instrumental legal personality. It is therefore incorrect to assert that it lacks official oversight. Second, in matters involving the conservation and preservation of historical and architectural heritage, the position of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail, while the technical position of the Sistema Nacional de Áreas de Conservación (SINAC) shall prevail with respect to the protection of wildlife and conservation of the island’s biodiversity. It is therefore clear that oversight of the island will constitute official State oversight through the institutions represented on the Board, and that the Board will also have the benefit of SINAC’s technical position. 5.

Regarding the use of private security officers in a national park. The petitioners’ allegations are without merit, first, because park rangers are not excluded from the oversight and security of the Park and, further, because the law clearly provides that private security officers shall have no police authority and may not perform nondelegable functions belonging to the Administration. The petitioners’ arguments are therefore unfounded and must be rejected. 6. Regarding concessions and authorization to build docks and berthing facilities in national parks. Likewise, we reject the petitioners’ arguments of unconstitutionality. It was previously noted that the Sala Constitucional considers that the high priority accorded to sustainable tourism development ... must be construed as constitutional. Accordingly, the law governing Parque Nacional Isla San Lucas must be understood as a special law that creates a national park while establishing special regulations in view of the characteristics and needs of Isla San Lucas and the importance that tourism will have in enabling Costa Ricans and foreigners to learn about its historical and architectural heritage.

For this reason, the Park may develop all infrastructure necessary to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation services, docks, berthing facilities, food services, access routes, and information and communications in various formats, as well as any infrastructure it considers appropriate for the benefit of visitors and to ensure the enjoyment and appreciation of the Park’s historical, architectural, and natural wealth. The law also provides that, for the construction of docks, berthing facilities, and other maritime facilities, the Board of Directors may rely on Incop, MOPT, and ICT. The allegation that concessions and authorization to build docks and berthing facilities in national parks violate constitutional provisions is rejected, because the provisions governing this law must be considered as a whole, with emphasis on the balance and safeguards contained in the law for environmental protection. 7.

Regarding the claim that funding is uncertain. This argument must be rejected because it includes a series of suppositions or presumptions that will not necessarily materialize and that would not necessarily arise as a result of the challenged Law’s entry into force. It is not valid to claim that the funding is uncertain, because the available resources include resources that currently exist, such as those allocated to the Sistema Nacional de Áreas de Conservación (SINAC). Although transfers from the national budget will depend on the availability of fresh, unrestricted funds, this source cannot be excluded a priori as a possible source of funding. Donations from any natural or legal person are also a possibility. For example, a campaign could be conducted to receive donations for the restoration of historic sites. Furthermore, because the law provides that fees charged by the Park for the use of its services, as well as concession and permit fees, must be invested in the national park itself, these would constitute a permanent source of revenue. III. RELIEF REQUESTED. In accordance with the report submitted, it is requested that the constitutional challenge be dismissed.”

1. 141In judgment no. 2021008520 at 9:15 hours on 28 de abril de 2021, issued by this Court in expediente no. 21-006852-0007-CO, it was ruled: “I.- Regarding the subject matter of the challenge. In the case under review, the petitioner considers that Ley n.° 9892 de Creación del Parque Nacional Isla San Lucas violates the principle of non-regression in environmental matters (principio de no regresión en materia ambiental), because, although it concerns a national park, Article 8 of the challenged law assigns its administration to a Board of Directors rather than to SINAC, as required, and also modified the essential purpose of a national park by placing visitation above conservation, having given high priority in Articles 2 and 4 to sustainable tourism development, a purpose that departs from the national-park management model and therefore violates the principle of non-regression in environmental matters and Article 50 of the Constitution by reducing its previous level of protection, as well as Article 35 of the Ley Orgánica del Ambiente and Article 12 of Ley n.° 6084 de Creación del Servicio de Parques Nacionales.He further states that the principle of objective environmental protection (principio de objetivación de la tutela ambiental) and Articles 11 and 50 of the Constitution are also violated, because those modifications were made without the prior technical studies required in such cases, which additionally violates Articles 32, 33, 34 36 and 37 of the Ley Orgánica del Ambiente and Article 59 of the Ley de Biodiversidad. He also notes that Article 13 of the challenged law provides for the creation of a trust (fideicomiso) as an instrument for administering the national park, which contravenes the provisions of the Ley de Fortalecimiento del Control Presupuestario, because it could circumvent the controls to which the public budget is subject. II.- Based on the foregoing, it must first be stated that it is not for this Court to determine whether a statutory provision contravenes another provision of the same rank, since this is not a constitutional matter but rather an issue of ordinary legality, in which case it is for the ordinary courts to determine the rule applicable to a specific case; it should be noted that resolving an alleged conflict between statutory provisions is one of the ordinary functions of the courts of legality, not of the constitutional courts, as clearly established in the Ley de la Jurisdicción Constitucional.Accordingly, the action is inadmissible only insofar as it alleges violations of Articles 32, 33, 34, 35, 36 and 37 of the Ley Orgánica del Ambiente, Article 59 of the Ley de Biodiversidad, Article 12 of Ley n.° 6084 de Creación del Servicio de Parques Nacionales, and the Ley de Fortalecimiento del Control Presupuestario. In all other respects, these proceedings are admissible. III.- Article 84 of the Ley de la Jurisdicción Constitucional provides that if, after an action has been filed and before publication of the corresponding notice, other actions of unconstitutionality (acciones de inconstitucionalidad) are filed against the same law, decree, provision, agreement, or resolution, those actions shall be consolidated with the first and treated as expansions thereof. Actions filed in that capacity by the parties to the stayed proceedings shall also be consolidated if filed within fifteen days following the first publication of the notice.As established in the record, these proceedings were initiated on 8 de abril de 2021. In view of the foregoing and the evident connection between the subject matter challenged in this case and that challenged in expediente number 21-005756-0007-CO, which has been pending before this Chamber since 23 de marzo de 2021, and to avoid contradictory rulings that could affect the rights and interests of the parties involved, it is hereby ordered that this expediente be consolidated with the aforementioned one and that the corresponding claims be expanded. Por tanto: The action is summarily dismissed solely insofar as the petitioner alleges violations of Articles 32, 33, 34, 35, 36 and 37 of the Ley Orgánica del Ambiente, Article 59 of the Ley de Biodiversidad, Article 12 of Ley n.° 6084 de Creación del Servicio de Parques Nacionales, and the Ley de Fortalecimiento del Control Presupuestario. In all other respects, these proceedings are admissible. This action shall be consolidated with the action pending before this Chamber under expediente number 21-005756-0007-CO and treated as an expansion thereof.”
2. 142By a submission added to the digital expediente on 4 de mayo de 2022, Sebastián Morales Pérez, identity card 208430018, files an intervention in support of the petitioner (coadyuvancia activa) on the same terms as the submission added to the digital expediente on 8 de abril de 2021.
3. 143By a submission added to the digital expediente on 4 de mayo de 2022, Óscar Barboza Lizano, identity card 109030806, files an intervention in support of the petitioner and states: “I am deeply concerned about the reduction of the protected area and the creation of a commercial zone established by the Ley del Parque Nacional Isla San Lucas, without any specialized studies supporting that reduction. The following studies are attached: • Evaluación de las pesquerías en la zona media y externa del golfo de Nicoya en Costa Rica del 2013, prepared by José Ángel Palacios of BIOMARCC-SINAC-GIZ • and PARÁMETROS POBLACIONALES, TRAMA ALIMENTICIA DE LA CORVINA AGUADA Cynoscion squamipinnis (Günther, 1867), Y CARACTERÍSTICAS FÍSICO QUÍMICAS EN LAS ZONAS 1 y 2, ÁREA MARINA DE PESCA RESPONSABLE PAQUERA-TAMBOR, GOLFO DE NICOYA, COSTA RICA, conducted by M.Sc. Rosa Lidia Soto Rojas, M.Sc. Luis Hernández Noguera, Lic. Jose (sic) Luis Vega Alpízar, and Licda. Hannia Vega Bolaños, as part of PROYECTO (0079-14) Aportes a la gestión pesquera artesanal y semi-industrial del Golfo de Nicoya, Costa Rica of the Escuela de Ciencias Biológicas and Estación de Biología Marina of the Universidad Nacional.Both studies demonstrate the ecological importance of Parque Nacional Isla San Lucas and allow us to appreciate the potential impact or risks to ecosystems and related biological processes that could arise from reducing the protected area, which, as the studies show, is a breeding area for marine species of ecological importance and significance to artisanal fishers. Undoubtedly, before making a decision such as reducing the protected area, studies must be conducted to clarify in greater depth what impact the reduction will have on marine ecosystems and on local artisanal fishing communities. Likewise, contrary to Costa Rica’s international conservation commitments, establishing a special commercial zone will harm the health of the ecosystem, contrary to the objectives of national parks. Accordingly, the Action of Unconstitutionality is supported, because Protected Wildlife Areas (Áreas Silvestres Protegidas), as in the case of Parque Nacional Isla San Lucas, should not be reduced in the absence of prior studies assessing the impact of doing so.For the foregoing reasons, I respectfully request that the action be granted, because reducing the area places marine ecosystems at serious risk, with impacts that could be significant for their protection. It is important to note that Article 3 of the Ley del Parque Nacional Isla San Lucas establishes the boundaries and, from our perspective, is entirely and absolutely unconstitutional, because it leaves many hectares of the marine area unprotected and, moreover, creates a special zone in the terrestrial area, which concerns us. Presumably, national parks should not contain such special zones devoted to commercial activities; therefore, Article 3 of the Convención de Washington, which prohibits commercial purposes in national parks and was ratified by our State, would be violated.”
4. 144By a submission added to the digital expediente on 4 de mayo de 2022, Tatiana Cantillano Rodríguez, identity card 118650694, Patricia Villalobos Arias, identity card 108310698, Leonor Urrutia Ruiz, identity document 155812839512, Marcela Rivera Rodríguez, identity document 155809945629, Jeannina Rodríguez Elizondo, identity card 107690778, Sebastián Bravo Rivera, identity card 118600766, Yanory Rodríguez Castro, identity card 104070792, Álvaro Medina Santana, identity card 501660208, Katherine Rodríguez Zúñiga, identity card 118040218, Marlene Jiménez Mora, identity card 104650154, Joselyn Matei Mora, identity card 116690702, Wendy Rivera Ramírez, identity card 111860844, Minor Monge, identity card 900710034, Mario Cantillano Gamboa, identity card 102450454, Víctor Cantillano Monge, identity card 106060443, Luis Cantillano Monge, identity card 900830147, Maribel Marín Miranda, identity card 106650566, Roberto Monge Monge, identity card 105260066, Jefferson Chaves Monge, identity card 117530218, José Garita Valverde, identity card 107080749, María del Rocío Jiménez Chacón, identity card 105000606, Hugo González Jiménez, identity card 303800577, Luis Guillermo Salazar, identity card 107030197, César Salguero Hernández, identity card 304140736, Guillermo Rodríguez Castro, identity card 105320679, Stephanie Medina Rodríguez, identity card 112690321, Tatiana Vargas González, identity card 205720501, Ana Virginia Rodríguez, identity card 105100225, Margarita Rodríguez Castro, identity card 105320682, Diana Salazar Rodríguez, identity card 115280634, Elsa Paniagua Chacón, identity card 105680788, Carolina Méndez Contreras, identity card 503800856, Laura Rojas Berrocal, identity card 112500335, Flory Berrocal Paniagua, identity card 106390274, Carolina Berrocal Paniagua, identity card 109000792, Rafael Berrocal Soto, identity card 102810321, Susana Rojas Berrocal, identity card 110850879, Olga González Torres, identity card 103910121, Vinicio Marín González, identity card 110980179, Francisco Marín Sierra, identity card 104160787, Marcela Marín González, identity card 109030567, Kattia Marín González, identity card 109650472, Randall Rodríguez Rodríguez, identity card 108670161, Walter Umaña Ruiz, identity document 133812840613, Ana Ocampo Marín, identity card 106960892, Fernán Rodríguez Porras, identity card 111190615, Fernán Rodríguez Castro, identity card 103650609, Ruth Jiménez Mora, identity card 106320325, Walter Rodríguez Rodríguez, identity card 107140076, and María Fernanda Leitón Quesada, identity card 117230488, file interventions in support of the petitioner on the same terms as the submission added to the digital expediente on 8 de abril de 2021.
5. 145By a submission added to the digital expediente on 5 de mayo de 2021, Isaac Espinoza Alvarado, identity card 402590518, files an intervention in support of the petitioner on the same terms as the submission added to the digital expediente on 8 de abril de 2021.
6. 146By a submission added to the digital expediente on 5 de mayo de 2021, David Argüello Cáceres, identity card 901150123, files an intervention in support of the petitioner on the same terms as the submission added to the digital expediente on 8 de abril de 2021.
7. 147By resolution issued at 13:42 hours on 17 de mayo de 2021, the Presidency of the Chamber ordered: “The active intervenors (personas coadyuvantes activas) who filed their applications between 5 de abril de 2021 and 5 de mayo de 2021 are hereby directed, within a period of THREE DAYS, counted from the day following service of this resolution, and with the warning that their applications will be denied processing in the event of noncompliance, to: submit the duly signed and authenticated application for intervention (solicitud de coadyuvancia), and pay and affix the Costa Rican Bar Association revenue stamp in the amount of two hundred seventy-five colones for each signature authenticated on the filing requesting intervention.”
8. 148By means of a certification signed on 19 de mayo de 2021 by the Constitutional Chamber of the Court’s Chamber technician, it was stated that: “after reviewing the RECORD OF DOCUMENTS RECEIVED in the COSTA RICAN JUDICIAL OFFICE MANAGEMENT SYSTEM and conducting a thorough review of the CONSTITUTIONAL CHALLENGE (ACCIÓN DE INCONSTITUCIONALIDAD) being processed under case number 21-005756-0007-CO, brought by FRANCISCO ÁLVARO ANTONIO SAGOT RODRÍGUEZ, she certifies: That the resolution issued at thirteen hours and forty-two minutes on diecisiete de mayo de dos mil veintiuno was not served on the intervening parties ADRIÁN MORA MOLINA, CHERLIN YANIXA URBINA ROSALES, EDUARDO JOSUÉ MORALES BERMÚDEZ, GABRIEL JESÚS BELLO ESCALONA, KEILYN INDIRA CALVO CAMPOS, KEVIN RICARDO NÚÑEZ JAIMES, LEYDI CRUZ SEQUEIRA OBANDO, MADELINE GARITA MATAMOROS, MARIO ANDRÉS BOZA LORÍA, because they had not designated a place, residence, office, electronic means, or fax number for that purpose.”
9. 149In a filing added to the digital case file (expediente digital) on 20 de mayo de 2021, Jorge Alberto Serendero Hülssner, in his capacity as attorney-in-fact with full powers and no monetary limit (apoderado generalísimo sin límite de suma) for Fundación For The Oceans, reaffirmed the statements made in the document previously submitted to this Court.
10. 150By means of a certification signed on 25 de mayo de 2021 by the Court’s Chamber technician, it was recorded: “That, after reviewing the RECORD OF DOCUMENTS RECEIVED in the COSTA RICAN JUDICIAL OFFICE MANAGEMENT SYSTEM and conducting a thorough review of the case file in which this CONSTITUTIONAL CHALLENGE is being processed, there is no indication that, from diecisiete to veinticuatro de mayo del dos mil veintiuno, the intervenors: AARON JOSUÉ CHAVEZ MOLINA, ADRIÁN MORA MOLINA, ALBERTH SAÚL MORA MADRIGAL, ALBERTO DAVID LEITÓN GODÍNEZ, ALBERTO DE JESÚS CRUZ RAMÍREZ, ALESSIA BEATRIZ BARLETTA BOGANTES, ALLAN ARTURO SOLANO LEÓN, ÁLVARO MARTÍN MEDINA SANTANA, ANA LORENA DE LA TRINIDAD OCAMPO MARÍN, ANA VIRGINIA RODRÍGUEZ CASTRO, ANDERSSON MONTES CARRILLO, ANDRÉS MAURICIO ESPINACH BONILLA, ÁNGEL GABRIEL LOAIZA VARGAS, ANGIE MICHELL GÓMEZ LÓPEZ, ANLLEL RAQUEL CORDERO MAYORGA, ARIEL GRANDA SOLANO, ASOCIACIÓN SINDICAL DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA E INSTITUCIONES AFINES, BRANDON ANTONIO SÁNCHEZ CHAVARRÍA, BRANDY TAMARA JIMÉNEZ ARAYA, CARLOS ANDRÉS MATAMOROS DURÁN, CAROLINA AUXILIADORA BERROCAL PANIAGUA, CÉSAR EDUARDO SALGUERO HERNÁNDEZ, CHERLIN YANIXA URBINA ROSALES, CHRISTOPHER ANDRÉS SOLÍS CHAVARRÍA, CINTYA JIMÉNEZ MURILLO, CLARISSA LEÓN ALFARO, CYNTHIA LISSETH ALVARADO BRAVO, CYNTHIA MARÍA BONILLA ALFARO, DANIEL AGUILERA NÚÑEZ, DANIEL ALBERTO MORALES GUTIÉRREZ, DANIEL IVÁN MENA VARGAS, DANIELA AGÜERO ARAYA, DANIELA VARGAS LEITÓN, DANY ALBERTO VILLALOBOS, DAVID ALEJANDRO ARGÜELLO CÁCERES, DAVID ANTONIO MARÍN ZÚÑIGA, DAVID JOSUÉ RODRÍGUEZ PANIAGUA, DIANA HIDALGO ALFARO, DIANA VALERIA SALAZAR RODRÍGUEZ, DIEGO DE JESÚS CRUZ BERMÚDEZ, DOUGLAS SEBASTIÁN BRAVO RIVERA, EDITH NÚÑEZ CARBAJAL, EDUARDO JOAQUÍN CARRILLO JIMÉNEZ, EDUARDO JOSUÉ MORALES BERMÚDEZ, ELSA MARÍA DEL CARMEN PANIAGUA CHACÓN, EMILY ARLETH SEGURA MORA, EMMANUEL ARCE QUESADA, ESTEBAN CASTRO OVIEDO, ESTEBAN ROBERTO VALVERDE VÁSQUEZ, ESTEFANY MURILLO MADRIGAL, FABIAN HERRERA NÚÑEZ, FABIOLA GONZÁLEZ MARTÍNEZ, FEDERACION COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, FERNÁN ELIAS RODRÍGUEZ PORRAS, FERNÁN RODRÍGUEZ CASTRO, FIDEDIGNO CORRALES BARRANTESD, FIORELLA VEGA MOTTA, FLORY ELIZONDO PERAZA, FLORY ROCÍO DE LOS A BERROCAL PANIAGUA, FRANCISCO JESÚS SAN LEE CAMPOS, FRANCISCO MARÍN SIERRA, GABRIEL ALESANDRO ESPINACH BONILLA, GABRIEL JESÚS BELLO ESCALONA, GABRIELA NÚÑEZ SALAZAR, GABRIELA RODRÍGUEZ CASTRO, GEISÓN JOSUÉ FUENTES ARGUEDAS, GRETTEL AGUILERA SALAZAR, GRETTEL SÁNCHEZ MONTEZUMA, GUILLERMO ALEXANDER RODRÍGUEZ CASTRO, HAZEL ARACELI OVIEDO GÓMEZ, HAZEL VANESSA JIMÉNEZ SELVA, HELLEN ADRIÁNA BARRANTES MURILLO, HILLARY VALERIA CUBERO ARAYA, HUGO ALBERTO GONZÁLEZ JIMÉNEZ, HUGO ALONSO ARIAS RAMÍREZ, IAN JOSUÉ CALVO JIMÉNEZ, ISAAC ANDRÉS ESPINOZA ALVARADO, ISABEL CRISTINA SOLÍS SOLANO, ISAURA FABIOLA MORA BARCENAS, IVÁN ALBERTO ROJAS ARCE, IVÁN JAFET MORA BRENES, JACKELINE VILLALOBOS FERNÁNDEZ, JAIRO ALBERTO SALAS SÁNCHEZ, JAVIER RODRÍGUEZ FONSECA, JEANNINA DE LOS ÁNGELES RODRÍGUEZ ELIZONDO, JEFFERSON ROBERTO CHAVES MONGE, JEILYN ELENA FLORES NAVARRO, JENIFER VARGAS MADRIGAL, JENNIFER VÁSQUEZ ARIAS, JERRY ALBERTO FERNÁNDEZ CARRIÓN, JEYMAR JAFET DIXON SOLANO, JOEL JAVIER CHAVEZ RIOS, JOHANNA REBECA MURILLO VIQUEZ, JOHEL ANDRE CHAVEZ MOLINA, JORGE ENRIQUE MORALES GÓMEZ, JORGE GERARDO JIMÉNEZ ARIAS, JOSE ALEJANDRO BOURRET MARÍN, JOSE ANDRÉS ORTÍZ UREÑA, JOSE ANTONIO GARITA VALVERDE, JOSE CARLOS ARAYA CAMPOS, JOSE DAVID CANALES MORALES, JOSE FABRICIO AVILA SANABRIA, JOSE MAURICIO BRENES FERNÁNDEZ, JOSE PABLO NÚÑEZ SALAZAR, JOSE ROBERTO MONGE MONGE, JOSELYN TATIANA MATTEI MORA, JOSHUA GONZÁLEZ ALFARO, JOSUÉ DAVID GONZÁLEZ PRENDAS, JOSYAH BARAHONA PERÉZ, JUAN ALFONSO RAMÍREZ RUIZ, JUAN MANUEL MORALES PRADO, JUAN RAFAEL DE LA TRINIDAD ORTÍZ CARRIÓN, KACEY GABRIEL ALVARADO JIMÉNEZ, KARLA VALESKA SOLÍS SALAZAR, KATHERINE MARÍA RODRÍGUEZ ZÚÑIGA, KATHLEEN SOTO FONSECA, KATTIA DE LOS ÁNGELES MARÍN GONZÁLEZ, KEILYN INDIRA CALVO CAMPOS, KEILYN LETICIA LÓPEZ LÓPEZ, KENDRI YURLEY CHAVARRÍA MENA, KENDRY VINICIO JIMÉNEZ HERNÁNDEZ, KERLYN DANIELA JIMÉNEZ ARAYA, KEVIN RICARDO NÚÑEZ JAIMES, KEYTIN MARÍANNE ZAPATA CORTÉS, KEYTLIN MARIELL GÓMEZ ZÚÑIGA, LARISSA SOFÍA CHAVEZ MOLINA, LAURA DE LOS ÁNGELES BARRIENTOS CALDERÓN, LAURA SUSANA PORRAS ROJAS, LAURA VANESSA ROJAS BERROCAL, LEIDY CRISTINA JIMÉNEZ ELIZONDO, LENNI MARÍA JIMÉNEZ ELIZONDO, LEÓNARDO ENRIQUE NACH VIVAS, LEYDI CRUZ SEQUEIRA OBANDO, LILLIAM DANIELA MORA MONTOYA, LISBETH DANIELA SÁNCHEZ RODRÍGUEZ, LUIS DIEGO BUSTOS ARGUEDAS, LUIS GUILLERMO CANTILLANO MONGE, LUIS GUILLERMO SALAZAR HERNÁNDEZ, MADELINE GARITA MATAMOROS, MANUEL ALBERTO CERDAS SALAZAR, MANUEL HERRERRA CORRALES, MARCELA DE LOS ÁNGELES MARÍN GONZÁLEZ, MARCELA JIMÉNEZ MURILLO, MARCELO ANTONIO ROA ROSALES, MARCO ANTONIO CHAVARRÍA SÁNCHEZ, MARCOS VINICIO AGÜERO HERNÁNDEZ, MARGARITA DEL SOCORRO PRENDAS SALAZAR, MARGARITA ROSA DEL CARMEN RODRÍGUEZ CASTRO, MARÍA ÁNGELA DEL CARMEN UREÑA JIMÉNEZ, MARÍA DANIELA AGUILAR CHAVARRÍA, MARÍA DEL ROCÍO JIMÉNEZ CHACÓN, MARÍA FERNÁNDA CERDAS SOLÍS, MARÍA FERNÁNDA LEITÓN QUESADA, MARÍA ISABEL ALFARO CHAVARRÍA, MARÍA ISABEL BONILLA ALFARO, MARÍA JESÚS GONZÁLEZ JIMÉNEZ, MARÍA JESÚS VIQUEZ CAMACHO, MARÍA LEÓNOR URRUTIA RUIZ, MARÍA MARGARITA GUZMÁN VARGAS, MARIBEL DE JESÚS MARÍN MIRANDA, MARICEL DE GERARDO MADRIGAL HERNÁNDEZ, MARIELA DEL MILAGRO BRENES OROZCO, MARIO ANDRÉS BOZA LORIA, MARIO CANTILLANO GAMBOA, MARIO MINOR MONGE MONGE, MARIPAZ ESPINACH BONILLA, MARLENE JIMÉNEZ MORA, MARLENE MARITZA VALVERDE CHACÓN, MARYETH CAROLINA MÉNDEZ CONTRERAS, MAURICIO ESPINACH MONTERO, MAYELA RIVERA RODRÍGUEZ, MAYKE ALBERTO MONGE VARGAS, MELANIE PAMELA QUIRÓS PORRAS, MELANY TATIANA GAMBOA MATA, MICHELLE NAYERY CASTRO AGUILAR, MICHELLE ULLOA MARTÍNEZ, MONSERRAT MARÍA RAMÍREZ MADRIGAL, NATALIA CORDERO MURILLO, NATASHA MARÍA SOLÍS SOLORZANO, NIKOLE ALEXANDRA SEGURA MORA, NOE GUILLERMO RIVERA VALVERDE, NURIA DEL CARMEN ARAYA CRUZ, OLGA GONZÁLEZ TORRES, OLGA MAYELA SALAZAR BONILLA, OSCAR BARBOZA LIZANO, PAOLA SALAZAR AGUILERA, PATRICIA DEL PILAR VILLALOBOS ARIAS, RACHELL VALERIA ROJAS SOLANO, RAFAEL ÁNGEL BERROCAL SOTO, RANDALL RODRÍGUEZ RODRÍGUEZ, RICARDO JESÚS GONZÁLEZ AVILA, ROBERTO MIGUEL MOLINA UGALDE, RUTH JIMÉNEZ MORA, SAÚL MATARRITA ALVARADO, SEBASTIÁN JOB CASTRO ROJAS, SEBASTIÁN MORALES PERÉZ, SERGIO ANTONIO GONZÁLEZ JIMÉNEZ, SERGIO GONZÁLEZ AVILA, SHARON CAMILA ALFARO NÚÑEZ, SHARON PRISCILLA BLANDON RUIZ, SHAZAD ROLANDO FUENTES CHAVARRÍA, SHEINER MAURICIO UMAÑA ERAZO, SHIRLEY GABRIELA MÉNDEZ CORDONERO, SHIRLEY MARÍA MARTÍNEZ MARTÍNEZ, SIAM JOSUÉ HERRERA ARIAS, SILVIA ELENA CEDEÑO ULATE, SOFÍA CORDERO CORDERO, STACY YULIANA BARRANTES GONZÁLEZ, STEPFANIE SUSANA BRENES SOLANO, STEPHANIE FABIOLA ARRIETA ANGULO, STEPHANIE PAOLA MEDINA RODRÍGUEZ, STEVEN ALBERTO JUAREZ SEGURA, STEVEN GONZÁLEZ SALAZAR, STEVEN JOSE LOZANO RAITH, SUSANA MARCELA ROJAS BERROCAL, TAMARA SÁNCHEZ DI LUCA, TATIANA DE LOS ÁNGELES CANTILLANO RODRÍGUEZ, TATIANA VARGAS GONZÁLEZ, TELMA CLARIBEL MOLINA NÚÑEZ, TROY GABRIEL VARGAS ORTÍZ, VALERIA BEATRIZ CORTÉS BRENES, VALERIA CALDERÓN MORA, VALERIA MARÍN CALDERÓN, VALERIA SÁNCHEZ DI LUCA, VÍCTOR HUGO DE LA TRINIDAD CANTILLANO MONGE, VINICIO MARÍN GONZÁLEZ, VIVIANA MARÍA MORA MADRIGAL, WALTER ANDRÉS URRUTIA RUIZ, WALTER JESÚS DE LA TRINIDAD RODRÍGUEZ RODRÍGUEZ, WENDY GONZÁLEZ SALAZAR, WENDY MARÍA RIVERA RAMÍREZ, WILLIAM SALAZAR CARRANZA, YAMILETH ELIZONDO PERAZA, YANELLY DE LOS ÁNGELES ABARCA ABARCA, YANORY RODRÍGUEZ CASTRO, YARIEL MORA CHAVARRÍA, YENDRY PAMELA ESTRADA RIVERA, YENDRY PAOLA CALDERÓN LEÓN, YOLANDA GERARDINA MADRIGAL HERNÁNDEZ, YULISSA OROZCO ALFARO submitted any filing or document to comply with the directive contained in the resolution issued at thirteen hours and forty-two minutes on diecisiete de mayo de dos mil veintiuno in CONSTITUTIONAL CHALLENGE number 21-005756-0007-CO, brought by FRANCISCO ALVARO ANTONIO SAGOT RODRÍGUEZ.”
11. 151In briefs added to the digital case file on 27 de mayo de 2021, Silvia Hernández Sánchez appeared in her capacity as president of the Asamblea Legislativa and stated: “II. GROUNDS FOR OPPOSITION TO THE PGR OPINION A. Erroneous Calculation Beginning with the differentiated management area (área de manejo diferenciado), we must clarify that the advisory body to the Sala Constitucional made an error in calculating the areas, because, in arriving at those 138 hectares, it mistakenly combined the island’s ‘land’ area with the adjacent water area. Indeed, the calculation performed by the PGR is a simple addition of the areas itemized in Article 6 of Ley 9892; however, the areas designated as the ‘Building Area,’ ‘El Coco Beach Recreation Area,’ and ‘Trail Area’ together constitute 65.5 hectares of the island’s total 462 hectares, but not the area designated as the ‘Water Sector’ (74.6 hectares), which is not counted within those 462 hectares constituting the total area of the island itself.Consequently, the proportions reported in the PGR opinion are incorrect. Another highly significant point must be added: the areas designated as the ‘Building Area,’ ‘El Coco Beach Recreation Area,’ and ‘Trail Area’ are in no respect innovations or creations established or generated by Ley 9892, but rather acknowledgments of existing conditions on Isla San Lucas (see decreto 34282). B. Differentiated Management Area as Opposed to Absolute Protection The issue of the differentiated management area, which the PGR opinion emphasizes on several occasions, is not an innovation introduced by Ley 9892/2020. Decreto 34282, the constitutionality of which was previously analyzed by the Sala Constitucional, was what first raised this issue, since Article 2 thereof established: (…) Likewise, Article 5 of the cited decree provides for the approval of a differentiated Sustainable Tourism Development Master Plan, although generally applicable to the ENTIRE island.The legislation enacted by the Asamblea Legislativa instead confines and defines the areas in which sustainable tourism development is intended to take place, since the relationship between the final paragraph of Article 3 and Article 7 of Ley 9892 shows that (…) Under the wording that has remained in force through decreto 34282, activities and access have been permitted throughout the entire island, whereas, under the boundaries established by the Asamblea Legislativa, the differentiated management zone is what identifies and limits those possibilities for activities and access, with its area and coordinates duly delineated, in order to strengthen protection over the remainder of the island. Differentiated management intended to promote sustainable tourism development should not, however, be understood as severing this zone from the rest of the protective legislation in force in our country.The members of the Asamblea Legislativa acknowledged this in their statements regarding the approval of Ley 9892 (…) Likewise, when the Asamblea Legislativa consulted the Ministerio de Ambiente y Energía, the Ministry emphatically supported the proposed legislative amendment then under consideration, which sought to clearly delimit the powers to act within the differentiated management area (…) Nor is the foregoing an innovation with respect to Parque Nacional Isla San Lucas, since suitable and appropriate infrastructure currently exists in the country’s various national parks precisely to provide access and facilitate visits, while delineating areas and protecting larger areas. Official letter 22 de diciembre 2021-SINAC-DE-2047 attached the Excel table included at the end of this document, which shows that paving works, bridges, lighting and utility poles, restrooms, restaurants, accommodations compliant with ley 7600, drinking water, lodges, etc., exist in virtually ALL of the country’s national parks.C. Continued Existence of the National Refuge The PGR states that Ley N.° 9892 provides in Article 3 that the coastal marine area (área marina costera) consists of the waters surrounding the island to a depth of up to three meters, which entails a reduction—unsupported by technical criteria—of the protected wild area (área silvestre protegida), because under the Executive Decree creating the Wildlife Refuge, Article 3 of Decreto N.° 29277 de 11 de enero de 2001, the protected area extended offshore to a depth of 6 meters. This conclusion presupposes that the new law enacted by the Asamblea Legislativa repeals or somehow renders inoperative the regulations already implemented by the Poder Ejecutivo through decreto 34282, which created the Wildlife Refuge (Refugio de Vida Silvestre) of Isla San Lucas. That is entirely incorrect, not only because Ley 9892 contains no such provision, but also because the lawmakers’ express intent was precisely the opposite (…) In other words, the National Park includes the waters surrounding the island to a depth of 3 meters; beyond that point, the deeper waters included within the Refuge remain protected under the latter category.Those regulations have neither been repealed nor amended. The relationship between Articles 3 and 6 of Ley 9892 specifies in detail the extent of the zone in which sustainable tourism activities may be conducted—activities that were also permitted under the Refuge’s management plans—while preventing them from now being conducted in other areas of the island. The following composite image prepared by the Instituto Geográfico Nacional readily illustrates our point, as it identifies and contrasts the respective areas of the National Park and the Refuge: (…) D. Alleged Reduction in Protection: A Reality-Based Assessment In the PGR’s view, the differentiated management model for the tourism zone is intended to promote sustainable tourism activities with an emphasis on economic considerations and on conceptualizing, marketing, and promoting the island as a tourist attraction, rather than on criteria for conserving and preserving natural and cultural resources.According to the PGR, such tourism activities do not fall within the concept of ecotourism; in particular, the PGR states that they are not the type of tourism activities considered compatible with the management category (categoría de manejo) of a national park. This is particularly so because concessions may not be granted in a National Park, nor may permission be granted to establish facilities other than those of the Servicio Nacional de Parques Nacionales—that is, commercial, transportation, sports, artistic, and cultural facilities intended to encourage tourism and visits to the island. This view is mistaken. First, we must make clear that ‘ecotourism’ and ‘sustainable tourism activity’ are by no means synonymous. The former concept means the ‘observation and appreciation of nature or traditional cultures in natural areas,’ whereas the latter constitutes ‘tourism that fully takes account of its current and future economic, social, and environmental impacts in order to meet the needs of visitors, the industry, the environment, and host communities’ (…) Within the framework of the Proyecto Fortalecimiento de Programa de Turismo en Áreas Silvestres Protegidas (…), SINAC has specifically adopted this second approach to sustainable tourism activities, as reflected in the document ESTRATEGIA DE TURISMO SOSTENIBLE EN LAS ÁREAS SILVESTRES PROTEGIDAS DEL SISTEMA NACIONAL DE ÁREAS DE CONSERVACIÓN (…) This situation is reflected in the attached Excel table (…), which, as stated, corresponds to official letter 22 de diciembre 2021 – SINAC-DE-2047 and shows, by way of example, that five national parks offer restaurant service and six offer lodging services for visitors.Moreover, the proposal to grant concessions on Isla de San Lucas has been pending before MINAE since 2012; this is stated in the PLAN DE MANEJO DEL REFUGIO NACIONAL DE VIDA SILVESTRE ISLA SAN LUCAS, prepared by the Sistema Nacional de Áreas de Conservación (…) The Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas 2020-2030 (…) identified Weaknesses, Opportunities, and Strengths of the Protected Wild Area, clearly reflecting needs and opportunities for improvement that coincide with the provisions of the Law Creating the Park, particularly regarding potential service concessions intended to offset some of the weaknesses identified when the area was still a Refuge (…) To underscore just one of the weaknesses that the island experienced under the former Refuge framework, we emphasize the specific case of vandalism that affected Isla San Lucas, causing the loss of valuable historical heritage, entirely as a result of the site’s abandonment by SINAC personnel due precisely to the lack of security there.Between the night of Friday, 25 de noviembre del año 2017, and the early morning of Saturday, 26 de noviembre, flames consumed the historic building that had housed the former command headquarters on Isla San Lucas. It was a two-story, 100-square-meter structure. The building was completely destroyed by fire. The Organismo de Investigación Judicial (OIJ) opened an investigation to determine the causes of the fire; however, it did not identify those responsible for the damage. All of this occurred because of the state of abandonment in which the Refuge had been left, with administrative arrangements and staffing insufficient to protect its historical heritage. The following official letters sent by the Sistema Nacional de Áreas de Conservación to the office of Deputy Carlos Ricardo Benavides may be cited regarding these events: (…) it is considered that the interpretation of the applicable rules underlying the PGR’s advisory opinion to the Sala Constitucional is wholly divorced from reality and, above all, fails to consider the applicable legal framework as a whole.The PGR overlooks that, since the implementation of the Ley del Servicio de Parques Nacionales in 1997, not only conservation and preservation but also visitation have been promoted, and that, over the years, sustainable tourism (Ley de Biodiversidad, 1998) has become a fundamental pillar of the conservation system, to such an extent that delineating tourism access zones has had to be established as a basic criterion for administrative action. Consistent with this reasoning, the Informe de Servicios Técnicos de la Asamblea Legislativa (AL-DEST-IJU-006-2020 (…) states the same. The following Excel spreadsheet (from official letter 22 de diciembre 2021 – SINAC-DE-2037) shows the size and proportion of those zones in the country’s various national parks and wildlife refuges, demonstrating that, precisely to achieve the full and absolute protection of 96.09 percent of those areas, visitation and sustainable tourism are promoted in 3.91% of the country’s national parks (the total area designated for tourism visitation) (…) E. Two Legal Issues of Significance and Safeguarding This representation wishes to emphasize two aspects of the matter that call into question the PGR’s excessively literal interpretation, in its opinion to the Sala, of what is and is not permissible in National Parks, as well as its interpretation of the safeguards established to prevent environmental abuses or harm to architectural heritage.

As we have indicated above, it appears to us that the PGR has overlooked the fact that, since the implementation of the Ley del Servicio de Parques Nacionales in 1977, not only conservation and preservation, but also sustainable tourism (turismo sostenible) (Ley de Biodiversidad, 1998), has become a fundamental pillar of the conservation system. We consider that, from a regulatory standpoint, what the administration has done is to harmonize public mandates, that is, to carry them out in the manner that best ensures the fulfillment of all the public purposes toward which they are directed (art. 10 LGAP), and this process necessarily entails undertaking all activities required for the sustainability of such tourist visitation (art. 12 LGAP). From this perspective, it is not untenable that Ley 9892/20 20 sought to ensure the proper implementation of the public purpose of conservation/preservation alongside sustainable tourism.

Along the same lines, the Asamblea Legislativa also established in the LEY DE CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS No. 9892/2020 a mechanism that the PGR has likewise overlooked and that is regulated in the final paragraph of Article 9: (…) Note that the administration of Parque Nacional Isla San Lucas could not disregard the environmental and architectural-heritage criteria established by the technical bodies. In our view, this aspect is decisive in safeguarding against any abuse or departure from the general regulatory framework governing the environment and historical and architectural heritage, while also insulating the area from all the risks identified in the PGR report. F. Technical Studies According to the PGR position discussed in this document, authorization of ecotourism activities (actividades de ecoturismo) (we emphasize, sustainable tourism instead) in a national park or biological reserve must be subject to scientific and technical sustainability criteria.

Starting from this basic premise, the PGR is once again mistaken. Ley 9892 establishes the legal rules that would make it possible to carry out certain activities in the Tourist Zone (Zona Turística) of Parque Nacional Isla San Lucas. The task of issuing licenses and concessions, authorizing the provision of water, electricity, telecommunications, hygiene and sanitation, docks, berthing facilities, food services and access routes, information and communications, and actually placing the park into operation falls, as it always has, to the administrative authority. Ley 9892 does not, by itself, bring such specific activities into effect. Moreover, the technical criteria set forth in the final paragraph of the cited Article 9 shall always prevail. This clarification, which at first appears innocuous, reveals a confusion or erroneous interpretation consisting essentially in the fact that one thing is the scientific and technical studies that the Asamblea Legislativa must have before it when deciding whether or not to authorize a possible course of action, and quite another thin (sic) is the scientific and technical studies that must provide the grounds (motivar) (the factual and legal components) for the administrative act (acto administrativo) granting new licenses or permits, for example, or authorizing a berthing facility or similar works—all actions that the competent public administration already carries out and implements in various national parks.

This was specifically clarified and endorsed by the Sala Constitucional in the consultation concerning legislative decree 9909 (decision 2020-013837 issued at eighteen hours and thirty minutes on the twenty-second of July of the year two thousand twenty), highlighting the interpretive error that had been maintained regarding its prior holdings (…) In other words, the Asamblea Legislativa is responsible for placing the final authorization and implementation of specific activities in the hands of the administrative authority, but not for making those specific decisions itself in a legal text, much less for providing their technical basis. The assessment of the degree of technical certainty that should prevail when deciding to open, for example, a food service or visitor lodge, is left to the discretion of the administrative authority and remains under its control with respect to technical justifications.

The legislative decision, expressed through the enactment of a legislative decree, given its general and abstract nature, concerns the creation of the national park in question and its characteristics; and for that purpose, the legislative record contains consultations and opinions from all competent technical bodies, the principal and most relevant of which is that of the Ministerio de Ambiente, which, incidentally, supported the establishment of the national park. Finally, regarding this point, if the problem identified by the PGR relates exclusively to the Tourist Zone, we need only emphasize that, ever since the establishment of the Refugio Nacional, management plans (planes de manejo) have existed (see the appendix PLAN DE MANEJO DEL REFUGIO NACIONAL DE VIDA SILVESTRE ISLA SAN LUCAS from the year 2012) concerning tourism and historical heritage expressly within the same Tourist Zone addressed by the challenged Law.

This area has been subject to special regulations aimed at its use for tourist visitation under the designation Public Use Zone (Zona de Uso Público) (…) the Sala Constitucional is requested to dismiss the constitutional challenge (acción de inconstitucionalidad) processed under expediente 21-005756-0007-CO.”

1. 152By an order (resolución) issued at 17:00 hours on May 28, 2021, it was provided: “By an order of the Presidency of this Chamber issued at 13:42 hours on May 17, 2021, the persons who filed their applications for active intervention (coadyuvancia activa) between April 5, 2021 and May 5, 2021 were directed, within three days from the day following service of that order and with the warning that their applications would be denied processing in the event of noncompliance, to submit their duly signed and authenticated applications for intervention and to pay and affix the Colegio de Abogados revenue stamp. Nevertheless, only the applicant JORGE ALBERTO SERENDERO HULSSNER, in his capacity as general attorney-in-fact without monetary limitation (apoderado general sin límite de suma) of Fundación FOR THE OCEANS (application for intervention received by the Secretariat of the Chamber at 07:41 hours on April 13, 2021), complied with that directive (prevención), by means of a written submission received by the Secretariat of this Chamber on May 20, 2021.Accordingly, pursuant to the certification signed by the Secretary of the Chamber on May 25, 2021, the other persons who filed applications for intervention, namely: AARON JOSUÉ CHAVEZ MOLINA, ADRIÁN MORA MOLINA, ALBERTH SAÚL MORA MADRIGAL, ALBERTO DAVID LEITÓN GODÍNEZ, ALBERTO DE JESÚS CRUZ RAMÍREZ, ALESSIA BEATRIZ BARLETTA BOGANTES, ALLAN ARTURO SOLANO LEÓN, ÁLVARO MARTÍN MEDINA SANTANA, ANA LORENA DE LA TRINIDAD OCAMPO MARÍN, ANA VIRGINIA RODRÍGUEZ CASTRO, ANDERSSON MONTES CARRILLO, ANDRÉS MAURICIO ESPINACH BONILLA, ÁNGEL GABRIEL LOAIZA VARGAS, ANGIE MICHELL GÓMEZ LÓPEZ, ANLLEL RAQUEL CORDERO MAYORGA, ARIEL GRANDA SOLANO, ASOCIACIÓN SINDICAL DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA E INSTITUCIONES AFINES, BRANDON ANTONIO SÁNCHEZ CHAVARRÍA, BRANDY TAMARA JIMÉNEZ ARAYA, CARLOS ANDRÉS MATAMOROS DURÁN, CAROLINA AUXILIADORA BERROCAL PANIAGUA, CÉSAR EDUARDO SALGUERO HERNÁNDEZ, CHERLIN YANIXA URBINA ROSALES, CHRISTOPHER ANDRÉS SOLÍS CHAVARRÍA, CINTYA JIMÉNEZ MURILLO, CLARISSA LEÓN ALFARO, CYNTHIA LISSETH ALVARADO BRAVO, CYNTHIA MARÍA BONILLA ALFARO, DANIEL AGUILERA NÚÑEZ, DANIEL ALBERTO MORALES GUTIÉRREZ, DANIEL IVÁN MENA VARGAS, DANIELA AGÜERO ARAYA, DANIELA VARGAS LEITÓN, DANY ALBERTO VILLALOBOS, DAVID ALEJANDRO ARGÜELLO CÁCERES, DAVID ANTONIO MARÍN ZÚÑIGA, DAVID JOSUÉ RODRÍGUEZ PANIAGUA, DIANA HIDALGO ALFARO, DIANA VALERIA SALAZAR RODRÍGUEZ, DIEGO DE JESÚS CRUZ BERMÚDEZ, DOUGLAS SEBASTIÁN BRAVO RIVERA, EDITH NÚÑEZ CARBAJAL, EDUARDO JOAQUÍN CARRILLO JIMÉNEZ, EDUARDO JOSUÉ MORALES BERMÚDEZ, ELSA MARÍA DEL CARMEN PANIAGUA CHACÓN, EMILY ARLETH SEGURA MORA, EMMANUEL ARCE QUESADA, ESTEBAN CASTRO OVIEDO, ESTEBAN ROBERTO VALVERDE VÁSQUEZ, ESTEFANY MURILLO MADRIGAL, FABIAN HERRERA NÚÑEZ, FABIOLA GONZÁLEZ MARTÍNEZ, FEDERACION COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, FERNÁN ELIAS RODRÍGUEZ PORRAS, FERNÁN RODRÍGUEZ CASTRO, FIDEDIGNO CORRALES BARRANTES, FIORELLA VEGA MOTTA, FLORY ELIZONDO PERAZA, FLORY ROCÍO DE LOS A BERROCAL PANIAGUA, FRANCISCO JESÚS SAN LEE CAMPOS, FRANCISCO MARÍN SIERRA, GABRIEL ALESANDRO ESPINACH BONILLA, GABRIEL JESÚS BELLO ESCALONA, GABRIELA NÚÑEZ SALAZAR, GABRIELA RODRÍGUEZ CASTRO, GEISÓN JOSUÉ FUENTES ARGUEDAS, GRETTEL AGUILERA SALAZAR, GRETTEL SÁNCHEZ MONTEZUMA, GUILLERMO ALEXANDER RODRÍGUEZ CASTRO, HAZEL ARACELI OVIEDO GÓMEZ, HAZEL VANESSA JIMÉNEZ SELVA, HELLEN ADRIÁNA BARRANTES MURILLO, HILLARY VALERIA CUBERO ARAYA, HUGO ALBERTO GONZÁLEZ JIMÉNEZ, HUGO ALONSO ARIAS RAMÍREZ, IAN JOSUÉ CALVO JIMÉNEZ, ISAAC ANDRÉS ESPINOZA ALVARADO, ISABEL CRISTINA SOLÍS SOLANO, ISAURA FABIOLA MORA BARCENAS, IVÁN ALBERTO ROJAS ARCE, IVÁN JAFET MORA BRENES, JACKELINE VILLALOBOS FERNÁNDEZ, JAIRO ALBERTO SALAS SÁNCHEZ, JAVIER RODRÍGUEZ FONSECA, JEANNINA DE LOS ÁNGELES RODRÍGUEZ ELIZONDO, JEFFERSON ROBERTO CHAVES MONGE, JEILYN ELENA FLORES NAVARRO, JENIFER VARGAS MADRIGAL, JENNIFER VÁSQUEZ ARIAS, JERRY ALBERTO FERNÁNDEZ CARRIÓN, JEYMAR JAFET DIXON SOLANO, JOEL JAVIER CHAVEZ RIOS, JOHANNA REBECA MURILLO VIQUEZ, JOHEL ANDRE CHAVEZ MOLINA, JORGE ENRIQUE MORALES GÓMEZ, JORGE GERARDO JIMÉNEZ ARIAS, JOSE ALEJANDRO BOURRET MARÍN, JOSE ANDRÉS ORTÍZ UREÑA, JOSE ANTONIO GARITA VALVERDE, JOSE CARLOS ARAYA CAMPOS, JOSE DAVID CANALES MORALES, JOSE FABRICIO AVILA SANABRIA, JOSE MAURICIO BRENES FERNÁNDEZ, JOSE PABLO NÚÑEZ SALAZAR, JOSE ROBERTO MONGE MONGE, JOSELYN TATIANA MATTEI MORA, JOSHUA GONZÁLEZ ALFARO, JOSUÉ DAVID GONZÁLEZ PRENDAS, JOSYAH BARAHONA PERÉZ, JUAN ALFONSO RAMÍREZ RUIZ, JUAN MANUEL MORALES PRADO, JUAN RAFAEL DE LA TRINIDAD ORTÍZ CARRIÓN, KACEY GABRIEL ALVARADO JIMÉNEZ, KARLA VALESKA SOLÍS SALAZAR, KATHERINE MARÍA RODRÍGUEZ ZÚÑIGA, KATHLEEN SOTO FONSECA, KATTIA DE LOS ÁNGELES MARÍN GONZÁLEZ, KEILYN INDIRA CALVO CAMPOS, KEILYN LETICIA LÓPEZ LÓPEZ, KENDRI YURLEY CHAVARRÍA MENA, KENDRY VINICIO JIMÉNEZ HERNÁNDEZ, KERLYN DANIELA JIMÉNEZ ARAYA, KEVIN RICARDO NÚÑEZ JAIMES, KEYTIN MARÍANNE ZAPATA CORTÉS, KEYTLIN MARIELL GÓMEZ ZÚÑIGA, LARISSA SOFÍA CHAVEZ MOLINA, LAURA DE LOS ÁNGELES BARRIENTOS CALDERÓN, LAURA SUSANA PORRAS ROJAS, LAURA VANESSA ROJAS BERROCAL, LEIDY CRISTINA JIMÉNEZ ELIZONDO, LENNI MARÍA JIMÉNEZ ELIZONDO, LEÓNARDO ENRIQUE NACH VIVAS, LEYDI CRUZ SEQUEIRA OBANDO, LILLIAM DANIELA MORA MONTOYA, LISBETH DANIELA SÁNCHEZ RODRÍGUEZ, LUIS DIEGO BUSTOS ARGUEDAS, LUIS GUILLERMO CANTILLANO MONGE, LUIS GUILLERMO SALAZAR HERNÁNDEZ, MADELINE GARITA MATAMOROS, MANUEL ALBERTO CERDAS SALAZAR, MANUEL HERRERRA CORRALES, MARCELA DE LOS ÁNGELES MARÍN GONZÁLEZ, MARCELA JIMÉNEZ MURILLO, MARCELO ANTONIO ROA ROSALES, MARCO ANTONIO CHAVARRÍA SÁNCHEZ, MARCOS VINICIO AGÜERO HERNÁNDEZ, MARGARITA DEL SOCORRO PRENDAS SALAZAR, MARGARITA ROSA DEL CARMEN RODRÍGUEZ CASTRO, MARÍA ÁNGELA DEL CARMEN UREÑA JIMÉNEZ, MARÍA DANIELA AGUILAR CHAVARRÍA, MARÍA DEL ROCÍO JIMÉNEZ CHACÓN, MARÍA FERNÁNDA CERDAS SOLÍS, MARÍA FERNÁNDA LEITÓN QUESADA, MARÍA ISABEL ALFARO CHAVARRÍA, MARÍA ISABEL BONILLA ALFARO, MARÍA JESÚS GONZÁLEZ JIMÉNEZ, MARÍA JESÚS VIQUEZ CAMACHO, MARÍA LEÓNOR URRUTIA RUIZ, MARÍA MARGARITA GUZMÁN VARGAS, MARIBEL DE JESÚS MARÍN MIRANDA, MARICEL DE GERARDO MADRIGAL HERNÁNDEZ, MARIELA DEL MILAGRO BRENES OROZCO, MARIO ANDRÉS BOZA LORIA, MARIO CANTILLANO GAMBOA, MARIO MINOR MONGE MONGE, MARIPAZ ESPINACH BONILLA, MARLENE JIMÉNEZ MORA, MARLENE MARITZA VALVERDE CHACÓN, MARYETH CAROLINA MÉNDEZ CONTRERAS, MAURICIO ESPINACH MONTERO, MAYELA RIVERA RODRÍGUEZ, MAYKE ALBERTO MONGE VARGAS, MELANIE PAMELA QUIRÓS PORRAS, MELANY TATIANA GAMBOA MATA, MICHELLE NAYERY CASTRO AGUILAR, MICHELLE ULLOA MARTÍNEZ, MONSERRAT MARÍA RAMÍREZ MADRIGAL, NATALIA CORDERO MURILLO, NATASHA MARÍA SOLÍS SOLORZANO, NIKOLE ALEXANDRA SEGURA MORA, NOE GUILLERMO RIVERA VALVERDE, NURIA DEL CARMEN ARAYA CRUZ, OLGA GONZÁLEZ TORRES, OLGA MAYELA SALAZAR BONILLA, OSCAR BARBOZA LIZANO, PAOLA SALAZAR AGUILERA, PATRICIA DEL PILAR VILLALOBOS ARIAS, RACHELL VALERIA ROJAS SOLANO, RAFAEL ÁNGEL BERROCAL SOTO, RANDALL RODRÍGUEZ RODRÍGUEZ, RICARDO JESÚS GONZÁLEZ AVILA, ROBERTO MIGUEL MOLINA UGALDE, RUTH JIMÉNEZ MORA, SAÚL MATARRITA ALVARADO, SEBASTIÁN JOB CASTRO ROJAS, SEBASTIÁN MORALES PERÉZ, SERGIO ANTONIO GONZÁLEZ JIMÉNEZ, SERGIO GONZÁLEZ AVILA, SHARON CAMILA ALFARO NÚÑEZ, SHARON PRISCILLA BLANDON RUIZ, SHAZAD ROLANDO FUENTES CHAVARRÍA, SHEINER MAURICIO UMAÑA ERAZO, SHIRLEY GABRIELA MÉNDEZ CORDONERO, SHIRLEY MARÍA MARTÍNEZ MARTÍNEZ, SIAM JOSUÉ HERRERA ARIAS, SILVIA ELENA CEDEÑO ULATE, SOFÍA CORDERO CORDERO, STACY YULIANA BARRANTES GONZÁLEZ, STEPFANIE SUSANA BRENES SOLANO, STEPHANIE FABIOLA ARRIETA ANGULO, STEPHANIE PAOLA MEDINA RODRÍGUEZ, STEVEN ALBERTO JUAREZ SEGURA, STEVEN GONZÁLEZ SALAZAR, STEVEN JOSE LOZANO RAITH, SUSANA MARCELA ROJAS BERROCAL, TAMARA SÁNCHEZ DI LUCA, TATIANA DE LOS ÁNGELES CANTILLANO RODRÍGUEZ, TATIANA VARGAS GONZÁLEZ, TELMA CLARIBEL MOLINA NÚÑEZ, TROY GABRIEL VARGAS ORTÍZ, VALERIA BEATRIZ CORTÉS BRENES, VALERIA CALDERÓN MORA, VALERIA MARÍN CALDERÓN, VALERIA SÁNCHEZ DI LUCA, VÍCTOR HUGO DE LA TRINIDAD CANTILLANO MONGE, VINICIO MARÍN GONZÁLEZ, VIVIANA MARÍA MORA MADRIGAL, WALTER ANDRÉS URRUTIA RUIZ, WALTER JESÚS DE LA TRINIDAD RODRÍGUEZ RODRÍGUEZ, WENDY GONZÁLEZ SALAZAR, WENDY MARÍA RIVERA RAMÍREZ, WILLIAM SALAZAR CARRANZA, YAMILETH ELIZONDO PERAZA, YANELLY DE LOS ÁNGELES ABARCA ABARCA, YANORY RODRÍGUEZ CASTRO, YARIEL MORA CHAVARRÍA, YENDRY PAMELA ESTRADA RIVERA, YENDRY PAOLA CALDERÓN LEÓN, YOLANDA GERARDINA MADRIGAL HERNÁNDEZ and YULISSA OROZCO ALFARO, failed to comply with the directive within the prescribed period.Consequently, it is ordered: Article 83 of the Ley de Jurisdicción Constitucional provides that, during the fifteen days following the first publication of the notice referred to in the second paragraph of Article 81, the parties appearing in matters pending on the date the constitutional challenge (acción) was filed, or those having a legitimate interest (interés legítimo), may enter an appearance therein (sic) in order to support the arguments that might establish that the challenge should or should not be allowed, or, where appropriate, to expand the grounds of unconstitutionality relating to the matter in which they have an interest. In this specific case, it is established that all applications for intervention were filed between April 5, 2021 and May 5, 2021, within the fifteen-day period following the first publication of the notice on April 13, 2021. However, because they failed to comply with the directive issued by this Chamber in the order of 13:42 hours on May 17, 2021, the appropriate course is to reject the applications for intervention filed before this Court between April 5, 2021 and May 5, 2021, except for the application filed by JORGE ALBERTO SERENDERO HULSSNER, in his capacity as general attorney-in-fact without monetary limitation of FUNDACIÓN FOR THE OCEANS, who complied with the directive on May 20, 2021 and is therefore admitted as an active intervenor (coadyuvante activo).It should be clarified that, although applicant ROBERTO MIGUEL MOLINA UGALDE, identity card no. 5-0195-0151, representative of SINDICATO DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA (SITRAMINAE), submitted his signed and authenticated application for intervention by means of a written submission received by the Secretariat of this Chamber at 14:54 hours on April 16, 2021, he did not affix the Colegio de Abogados revenue stamp as directed. The same applies to the application for intervention received by the Secretariat of the Chamber at 13:53 hours on April 22, 2021, filed by DANI ALBERTO VILLALOBOS VILLALOBOS, identity card no. 2-0643-0273, in his capacity as representative of FEDERACIÓN COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, who likewise failed to comply with the directive requiring him to submit his application duly authenticated and bearing the Colegio de Abogados revenue stamp.For that reason, their applications are likewise denied. As to the active intervenor JORGE ALBERTO SERENDERO HULSSNER, in his capacity as general attorney-in-fact without monetary limitation of FUNDACIÓN FOR THE OCEANS, he is advised that—with regard to the effects of intervention—because an intervenor is not a principal party (parte principal) to the proceeding, he will not be directly harmed or benefited by the judgment; that is, the judgment does not apply to the intervenor directly and immediately, nor is he bound by res judicata (cosa juzgada), nor do the immediate effects of enforcement of the judgment apply to him, since intervention cannot be used to compel the adjudicative authority to issue a ruling in his favor because he was not a principal party to the proceeding. What may affect him, although not because of his status as an intervenor but in the same manner as anyone else, is the erga omnes effect of the decision. A judgment in constitutional matters does not confer a particular benefit on anyone, not even the petitioner; such a benefit may be recognized in the underlying proceeding.

Moreover, the responses to the hearings granted to the Office of the Attorney General of the Republic, the president of the Legislative Assembly, the Minister of Culture and Youth, and the Executive President of the Instituto Costarricense de Turismo in the decision issued at 07:52 hours on March 26, 2021, are deemed submitted. Likewise, the hearing granted in the same decision to the Minister of Environment and Energy and the Executive Director of the Sistema Nacional de Áreas de Conservación is deemed unanswered, because the Management System contains no record of any document submitted by them in response to the hearing granted. It is further noted that, by decision n° 2021-008520 issued at 09:15 hours on April 28, 2021, action n° 21-006852-0007-CO was consolidated with this action; in that action, the petitioner (accionante), GUSTAVO FLORES YZAGUIRRE, identity card n° 107060843, likewise challenges Ley n° 9892 of August 24, 2020, entitled Ley de Creación del Parque Nacional Isla San Lucas, on the ground that it is contrary to article 50 of the Constitución Política, based on the same arguments raised in this action n° 21-0005756-0007-CO.

The record being ready for decision, the constitutional challenge (acción de inconstitucionalidad) is assigned to Justice Paul Rueda Leal, to whom, under the rotation system, responsibility falls for its consideration on the merits. Let notice be given.”

1. 153In a submission added to the digital case file on November 14, 2022, Susana Rojas Berrocal, identity card number 110850879, stated: “Last Thursday, November 10, I logged into my Judicial Branch account to check the status of an active Family Proceeding. While reviewing my cases, I was surprised to discover that I am listed as an intervenor in support (coadyuvante) in the Constitutional Challenge being processed under case file 21-005756-0007-CO, with both my identity card number and full name matching exactly. This has caused me great confusion because I have absolutely nothing to do with this matter, I have not filed any submission, nor have I participated in anything relating to this Challenge. I wish to make clear to the Honorable Constitutional Chamber that I have taken absolutely no action whatsoever in connection with these proceedings, and I respectfully request that I be informed whether this is due to an error or whether, on the contrary, I am the victim of identity theft, and who proposed me as an intervenor in support.”
2. 154By order of the reporting justice issued at 13:45 on November 15, 2022, it was ordered: “In a submission added to the electronic case file on November 14, 2022, Susana Rojas Berrocal states that she has taken no action related to these proceedings; for that reason, she requests clarification as to why she is listed as an intervenor in support and asks to be informed who proposed her as such. In this regard, the interested party is advised that the submission seeking intervention in support (coadyuvancia) was received by the Chamber by email on April 27, 2021, and added to the digital case file on May 4, 2021. That submission was sent by Tatiana Cantillano Rodríguez and included a list of signatures that apparently contains the signature and identity card number of Susana Rojas Berrocal. Should her objection persist, the interested party may expressly request her removal from the case file. She is further advised that, if she believes identity theft occurred, she must apply to the appropriate authorities to assert her rights, should she deem it appropriate. Notify the interested party.”
3. 155In a submission added to the digital case file on January 27, 2023, Susana Rojas Berrocal, identity card number 110850879, states: “In response to the order issued at thirteen hours and forty-five minutes on the fifteenth day of November, two thousand twenty-two, I wish to formally request my removal from the case at issue and to clarify that I have nothing to do with it.”
4. 156By order of the reporting justice issued at 8:31 on March 17, 2023, the mayor of Puntarenas and the director of the Regional Office for Mexico, Central America and the Caribbean of the International Union for Conservation of Nature were afforded an opportunity to be heard (audiencia).
5. 157In a submission added to the digital case file on March 24, 2023, José Francisco Coto Meza, in his capacity as general judicial attorney-in-fact (apoderado general judicial) for the Instituto Costarricense de Turismo, requests that the Cámara de Turismo de Puntarenas be asked to state its position regarding the allegations made by the petitioners (accionantes).
6. 158In a submission added to the digital case file on March 28, 2023, Susana Rojas Berrocal, identity card number 110850879, states: “In response to the order issued at thirteen hours and forty-five minutes on the fifteenth day of November, two thousand twenty-two, I wish to formally request my removal from the case at issue and to clarify that I have nothing to do with it.”
7. 159By a written submission incorporated into the digital case file on March 31, 2023, Úrsula Parrilla Artiuguina appeared in her capacity as Regional Director of the Unión Internacional para la Conservación de la Naturaleza for México, América Central y el Caribe. She stated: “I am writing in follow-up to the referenced constitutional challenge (acción de inconstitucionalidad), through which the UICN was asked to provide its views on the arguments presented by the petitioners. In this regard, and in response to the request of the Sala Constitucional, the UICN hereby submits its contributions addressing those arguments, which are contained in Anexo 1 to this communication. Likewise, I would like to reiterate our willingness to respond to any additional request for information that may be required within the framework of these proceedings. For this purpose, Dr. José Courrau, a subject-matter expert on Protected Areas assigned to this regional office, has been designated and may be contacted at the following email address.” The referenced annex stated: “Anexo 1- CONTRIBUTIONS OF THE UNION INTERNACIONAL PARA LA CONSERVACION DE LA NATURALEZA (UICN) TO THE CONSTITUTIONAL CHALLENGE CASE FILE # 21-005756-0007-CO This document responds to the inquiry submitted by the Sala Constitucional de Costa Rica in case file 21-005756-0007-CO.The opinions provided by UICN are purely technical and seek only to contribute to the discussion of the case in question, without prejudice to any party. I. About the UICN Established in 1948, the UICN is the world’s largest and most diverse environmental network and draws upon the knowledge, resources, and reach of our more than 1400 member organizations and 15 000 experts. This diversity and expertise make the UICN the global authority on the state of the natural world and the measures needed to safeguard it. Our broad membership also means that we can incubate ideas and serve as a trusted repository of international best practices, tools, and standards. We provide a neutral forum in which governments, NGOs, scientists, businesses, local communities, Indigenous Peoples’ organizations, and others can work together to address environmental challenges and achieve sustainable development. Working with numerous partners and supporters, the UICN implements a broad and diverse portfolio of conservation projects around the world.These projects combine the latest science with the traditional knowledge of local communities in an effort to reverse habitat loss, restore ecosystems, and improve human well-being. The UICN’s vision is “A just world that values and conserves nature,” and its mission is “To influence, encourage, and assist societies to conserve the integrity and diversity of nature and ensure that any use of natural resources is equitable and ecologically sustainable.” II. General Aspects of Protected Areas Protected areas (áreas protegidas) continue to be the world’s most successful option for in situ conservation (conservación in situ). They form an integral part of all national and international commitments to biodiversity conservation and seek to preserve representative and functional samples of the world’s terrestrial and marine natural systems and species, as well as to maintain ecological processes important to human populations.In addition, they contain significant cultural resources and may be important sites for adapting to the impending effects of climate change. Historically, protected areas have been established by governments, but more recently recognition has been given to the importance of areas that have been protected and sustainably managed by communities, Indigenous Peoples, and private individuals or organizations. The establishment of protected areas is a manifestation of the commitment of countries and society, both now and for the future, to the conservation of biodiversity and ecosystem services (servicios ecosistémicos). This commitment reflects the need to maintain species, ecosystems, and processes—and services—that are essential to human survival and that also generate economic income capable of being sustained and distributed fairly and equitably. The review and assignment of management objectives (objetivos de manejo) for biodiversity conservation purposes must be undertaken from a systemic perspective.This means that the components and their interactions must be considered when assigning objectives to individual protected areas. According to Groves (2003) and Dudley (2008), a biodiversity conservation system should possess the following characteristics: Representativeness, comprehensiveness, and balance: including the highest-quality examples of the full range of a country’s environmental types; this includes the extent to which protected areas provide a balanced sample of the types of environments they are intended to represent. Adequacy: the integrity, sufficient spatial extent, and arrangement of the areas contributing to the system, together with effective management, to support the viability of the environmental processes and/or species, populations, and communities comprising the country’s biodiversity. Coherence and complementarity: the positive contribution of each protected area to the set of conservation and sustainable-development objectives defined by the country.Consistency: standardized application of management objectives, policies, and classifications under comparable conditions, so that the purpose pursued by each protected area within the system is clear to all and the likelihood that its management and use will contribute to the system’s objectives is maximized. Cost-effectiveness, efficiency, and equity: an appropriate balance between costs and benefits and due equity in their distribution; this includes effectiveness: the minimum number and area of protected areas required to achieve the system’s objectives. III. General Aspects of Protected-Area Management Categories Having a sound system that responsibly describes the process for assigning, reviewing, and evaluating the management categories (categorías de manejo) that summarize and guide the management of valuable protected areas. These categories help organize the types of uses permitted in these areas.The evident differences among management categories demonstrate that biodiversity conservation can be achieved through different management models. The UICN has been the organization responsible for creating, analyzing, and updating the international system of protected-area management categories. This technical tool has been recognized worldwide as the benchmark for organizing management categories within countries. From the first version of the categories in 1974 to the new 2008 edition, much has been learned about their implications for the management and future of these areas and their relationship to the governance arrangements (arreglos de gobernanza) that define decision-making in protected areas. Some reasons for applying a system of protected-area management categories are: • To consolidate a national system of protected areas reflecting a range of management objectives and governance types. • To undertake annual planning for allocating personnel and budgets through a process directly related to management categories. • To raise the profile of protected areas as a critical foundation for more sustainable development. • To integrate protected areas into large-scale land-use planning (ordenamiento territorial) schemes or promote such a scheme. • To safeguard protected areas against environmentally irresponsible development and its impacts. • To improve data collection in order to increase knowledge about the protected-area system and capture more accurate information about categories and governance types for measuring progress toward national and international commitment targets. • To improve category-specific management at the site level. • To communicate management objectives more transparently to the various stakeholders. • To highlight the national category system by endeavoring to apply it in accordance with applicable law.A system of management categories for a country’s protected areas represents a responsible approach to organizing the management and governance of those areas. The methodological approach of this proposal is based on the 2008 “Guidelines for Applying Protected Area Management Categories,” developed by the UICN. The 2008 guidelines recommend that national initiatives for assigning management categories consider, develop, and implement a process for assigning/reviewing management categories within a country. They further state that the national protected-area institution should have an initial process for reviewing and assigning management categories. The process proposed by the guidelines is illustrated below: Identify management objectives ↓ Assess whether the sites meet the UICN definition of a protected area. At this stage, the country’s landscape is considered broadly: private, communal, and Indigenous lands, conservation gaps (vacíos de conservación), and engagement zones (zonas de relacionamiento) ↓ If so, document the following characteristics—legal status, management objectives, and the justification for protected-area status (biodiversity and cultural conservation targets (objetos focales), ecosystem services).Key scientific considerations are incorporated here, including connectivity, the condition of management targets (objetos de manejo), and the impact of climate change on protected areas—particularly adaptation—among others ↓ Use the information to propose a management and governance category for the protected area, based on the IUCN guidelines. The implications of the protected-area categories for the country’s present and future, as well as the institutional and human capacities required to carry out management, must be documented. Discuss the protected area’s role with reference to the national legal framework, national institutional guidelines for protected areas, and international technical standards for protected-area management. ↓ Conduct a consultation process throughout the entire process to reach agreement on the proposed category ↓ The government makes the final decision regarding the category ↓ Monitor, evaluate, and adapt the management of protected areas and their management categories.Use the information to report on protected-area management—for example, to the CBD. IV. Contributions Regarding the Points Raised in the Constitutional Challenge The information provided by UICN in the following points comes primarily from the following sources: Dudley, N. (Editor) (2008). Guidelines for Applying Protected Area Management Categories. Gland, Switzerland: UICN. x + 96pp. SINAC and UNDP. (2014). Consultancy Report “Recategorization of Protected Wilderness Areas” for the Removing Barriers to Sustainability project. UICN and CATIE. San José, Costa Rica. 268 pp. Worboys, G. L., M. Lockwood, A. Kothari, S. Feary and I. Pulsford (Editors) (2015). Protected Area Governance and Management. ANU Press, Canberra, Australia. 966 pp. General comments on the case Ley 9892 places a strong emphasis on the tourism use of the protected wilderness area (área silvestre protegida) and less emphasis on the conservation of biodiversity and ecosystem services.In addition, it demonstrates an interest in preserving the site’s buildings and other historical features. Furthermore, Ley 9892 incorporates zoning (zonificación) provisions and defines the uses permitted within these zones of the protected wilderness area. According to good practices in protected-wilderness-area management, both zoning and the determination of permitted uses are matters properly addressed in the area’s management plan (plan de manejo), rather than in a law.

Natural systems are dynamic, and their planning requires flexibility to adapt to entropy. Setting out zones and their uses in legislation results in a “freezing” of management that can be corrected only through new legislation. 1. Reduction of the protected wilderness area (área silvestre protegida) without justification After reviewing the points raised by the claimants, we can state that the size of the protected area was reduced by Ley 9892 del 24 de agosto de 2020, when the original marine boundary extending to a depth of 6 meters, which covered the Wildlife Refuge (Refugio de Vida Silvestre) at low tide, was reduced to a depth of 3 meters (without specifying high or low tide). UICN recommends conducting a cartographic analysis to determine precisely the extent to which the marine portion of the protected wilderness area was reduced. It also recommends assessing coastal and marine biodiversity in order to determine whether the change from 6 meters to 3 meters leaves species and ecosystems of conservation value unprotected. 2.

Change in management category (categoría de manejo) and inclusion of a tourism zone without supporting studies The protected wilderness area clearly underwent a change in management category from Wildlife Refuge to National Park (Parque Nacional). The assignment of a management category to a protected wilderness area must result from an analysis that considers the objectives for which the area was established, its natural, cultural, and other values, the current condition of those values, the uses that could be contemplated, among other factors. That assessment must be conducted jointly with stakeholders, authorities, and local communities. Pursuant to Reglamento de la Ley de Biodiversidad, artículos 71 y 72, when modifications or changes are made to the management category of protected wilderness areas, a detailed technical report must be prepared; where the level of the management category is raised, the specific reasons justifying the decision must be explained (…) For UICN, the organization that developed the management categories for protected areas worldwide, moving a protected wilderness area from a less restrictive management category to a more restrictive one is intended to make the importance of protecting the values contained within that area more evident.

However, in the case of Parque Nacional San Lucas, the change in category reflects an interest in developing tourism use rather than strengthening the protection of the site’s natural and cultural values. Additionally, there is a lack of studies and technical justification for both the change in category and the introduction of tourism activities at the site. As shown in the table below, the uses permitted in a Wildlife Refuge and a National Park differ in that a refuge permits biodiversity management and direct-use activities, the construction of public works, and tourism and recreational infrastructure. These activities are not permitted in a national park. Meanwhile, concessions and use permits (permisos de uso) are allowed in a national park but not in a refuge. (…) However, notwithstanding the provisions governing the two types of management categories, under Costa Rica’s Ley Forestal, forests constitute the Natural Heritage of the State (Patrimonio Natural del Estado, PNE).

This statutory concept includes protected wilderness areas, and artículos 18 y 18 bis define the uses permitted therein: research, training, ecotourism, and activities necessary for water use. Accordingly, the provisions of that article operate as an overarching management category that makes all protected wilderness areas equivalent in terms of permitted uses. The PNE takes precedence over the provisions governing management categories. UICN recommends that the Costa Rican State resolve this situation to prevent confusion while also allowing management categories to be applied to their full extent. UICN also recommends reviewing the technical justifications for the change in category under Ley 9892. It likewise recommends that both zoning (zonificación) and the uses permitted within the respective zones be determined through the process of developing and approving a management plan (plan de manejo), as the principal technical instrument for managing protected wilderness areas. 3.

Commercial purposes disguised as sustainable purposes in the fragmentation of the protected wilderness area The uses permitted in national parks under Costa Rican law include concessions for non-essential services (concesiones de servicios no esenciales) and use permits. There is no provision regarding commercial activities within the area. Best practices for national parks recognize concessions for non-essential services, provided that they neither alter nor compromise the condition of the site’s values. Additionally, as previously stated in the preceding points, zoning and the uses permitted within the protected wilderness area must be addressed in a site management plan, rather than in the legislation establishing it. The importance of including technical justifications for the zoning and permitted uses in the management plan bears emphasizing. UICN cannot offer an opinion on the contention that commercial purposes are being disguised as sustainable purposes while fragmenting the protected wilderness area. 4.

Regarding the Board of Directors That Will Administer the Park UICN has no technical criteria to contribute on this point. This matter must be addressed in accordance with national legislation concerning the governance of protected wilderness areas. 5. Incorporation of Private Security Officers into a National Park UICN has no technical criteria to contribute on this point. This matter must be addressed in accordance with national legislation concerning the monitoring and enforcement (control y vigilancia) of protected wilderness areas. Nevertheless, from the standpoint of environmental and social safeguards (salvaguardas ambientales y sociales), we wish to draw attention specifically to the risks to the rights, livelihoods, and well-being of neighboring communities. SINAC, as the institution responsible for safeguarding the country’s protected areas, has extensive experience in monitoring and enforcement activities and provides its personnel with the training necessary to perform those activities within the bounds of the law.

The incorporation of private security officers to conduct monitoring and enforcement activities within the protected wilderness area, without proper training or SINAC’s institutional oversight, may create risks to safeguards protecting the rights, livelihoods, and well-being of neighboring communities. 6. Regarding Concessions and Authorization to Build Piers and Mooring Facilities in National Parks. As stated in the preceding points, the determination of zones and permitted uses within a protected wilderness area pertains not to legislation but to a management plan grounded in scientific and technical information and developed through a participatory process involving stakeholders. Additionally, Ley de Biodiversidad allows concessions and use permits in national parks, even though artículos 18 y 18 bis of Ley Forestal define the four types of use applicable throughout the Natural Heritage of the State, which includes protected areas and takes precedence over the existing management categories.

In any event, Contraloría General de la República issued an opinion in 2003 stating that tourism piers and mooring facilities are not recognized as permissible concessions within protected wilderness areas. 7. Uncertain Funding UICN has no technical criteria to contribute on this point. This matter must be addressed in accordance with national legislation concerning the funding of protected wilderness areas.”

1. 160By resolution of the Presidency of the Chamber issued at 14:08 hours on 12 de abril de 2023, it was ordered: “Pursuant to Articles 10 and 85 of the Ley de la Jurisdicción Constitucional, ANAIS VILLALOBOS KONG, ÁLVARO SAGOT RODRÍGUEZ, and GUSTAVO FLORES YZAGUIRRE, in their capacity as petitioners; the Attorney General of the Republic, the president of the Legislative Assembly, the minister of Culture and Youth, the minister of Environment and Energy, the executive director of the Sistema Nacional de Áreas de Conservación, the executive president of the Instituto Costarricense de Turismo, the mayor of Puntarenas, and the director of the Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza, in their capacity as reporting parties (informantes); and Jorge Alberto Serendero Hülssner, in his capacity as a supporting intervenor (coadyuvante), are hereby summoned to an oral hearing (vista oral); all in connection with the action of unconstitutionality (acción de inconstitucionalidad) being processed under expediente nro. 21-005756-0007-CO.1) Date, time, and format of the hearing: The hearing is scheduled for 8:30 hours on 4 de mayo de 2023 and will be held in person in the Hearing Room located on the second floor of the Edificio de la Corte Suprema de Justicia, Barrio González Lahmann, San José.2) Attendance: Each participant may appear at the hearing personally or accompanied by an attorney.3) Accreditation of the parties: Within THREE DAYS of receipt of this notice, the petitioners, reporting parties, supporting intervenors, and all others shall provide the names and identification-card numbers of those who will appear before this Court.4) Technical requirements: To allow the necessary arrangements to be made, the petitioners, reporting parties, supporting intervenors, and all others shall report whether they intend to use equipment or technical aids during their presentations, such as computer presentations, videos, or slides; to prevent difficulties or unforeseen issues, this information shall be communicated to the Chamber within THREE DAYS of receipt of this notice. It is further clarified that, on the day of the hearing, the petitioners, reporting parties, supporting intervenors, and all others shall appear THIRTY MINUTES before the scheduled time with their respective electronic devices and connector cables if equipment is required for their presentations.5) Conduct of the Hearing: The following procedural matters are established: A) The Chamber shall begin the proceeding by granting the petitioning party up to fifteen minutes to speak, during which time it shall present the legal and technical arguments contained in the case file, confining itself to the specific subject matter of its claim and avoiding matters unrelated to its action. If, for any reason, it joins the proceeding late, it shall enter it at whatever stage the hearing has reached; consequently, if it was absent when its opportunity to speak arose, it may not subsequently present its arguments, unless the Court determines otherwise. B) Once the petitioning party has concluded its presentation, the floor shall be given to the Attorney General of the Republic, the president of the Legislative Assembly, the minister of Culture and Youth, the minister of Environment and Energy, the executive director of the Sistema Nacional de Áreas de Conservación, the executive president of the Instituto Costarricense de Turismo, the mayor of Puntarenas, and the director of the Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza. Each shall have a maximum of ten minutes to present the applicable legal and technical arguments, likewise addressing each claim raised by the petitioning party. If, for any reason, they join the proceeding late, they shall enter it at whatever stage the hearing has reached; consequently, if they were absent when their opportunity to speak arose, they may not subsequently present their arguments, unless the Court determines otherwise. C) Once the foregoing authorities have concluded their presentations, the floor shall be given to the supporting intervenor, Jorge Alberto Serendero Hülssner, for a maximum of five minutes, during which he shall present the applicable legal and technical arguments, likewise addressing each claim raised by the petitioning party. If, for any reason, he joins the proceeding late, he shall enter it at whatever stage the hearing has reached; consequently, if he was absent when his opportunity to speak arose, he may not subsequently present his arguments, unless the Court determines otherwise. D) Once the foregoing presentations have concluded, the Presidency of the Chamber shall grant the floor to the petitioning party, as well as to the Attorney General of the Republic, the president of the Legislative Assembly, the minister of Culture and Youth, the minister of Environment and Energy, the executive director of the Sistema Nacional de Áreas de Conservación, the executive president of the Instituto Costarricense de Turismo, the mayor of Puntarenas, and the director of the Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza, so that each may present any reply deemed appropriate within a maximum of three minutes; the order of participation shall be the same as that established for the initial presentations. E) Once these presentations have concluded, the Presidency of the Chamber shall grant the floor to the justices present so that they may pose any questions or request any clarifications they deem necessary. F) If no further participation by the justices is required, the hearing shall be concluded, without prejudice to the participants’ ability to submit written observations at a later date concerning matters discussed during the proceeding. Procedural order: Given the judicial nature of this proceeding, the parties present shall take the necessary precautions to prevent unnecessary disturbances caused by electronic devices and shall therefore turn off cellular telephones, pagers, and any other devices that, by their nature, could cause disturbances during the proceeding. The parties are advised that any failure to comply with these instructions, or any disruption of order by any means, shall authorize the Court to take whatever measures it deems appropriate. Let notice be served.”
2. 161In a written submission added to the digital case file on 13 de abril de 2023, William Rodríguez López, in his capacity as minister of Tourism, stated that both he and legal adviser José Coto Meza will participate in the hearing scheduled for 4 de mayo de 2023.
3. 162In a written submission added to the digital case file on 17 de abril de 2023, Wilber Madriz Arguedas, in his capacity as mayor of Puntarenas, states that attorney Carlos Ricardo Benavides Jiménez will participate in the hearing on 4 de mayo de 2023.
4. 163In a written submission added to the digital case file on 18 de abril de 2023, Úrsula Parrilla Artiuguina, in her capacity as the judicial and extrajudicial representative of UICN, vested with an unlimited general power of attorney (apoderada generalísima sin límite de suma), explains that her position is administrative and that she is responsible for managing the organization she represents in all the aforementioned countries. She clarifies that she is neither a scientist nor a specialist in the subject matter of the report submitted, but is responsible for supervising the proper implementation of the projects. She states that the person most qualified in the subject is scientist José Courrau, a doctor of Natural Resources, and therefore requests that he be authorized to deliver the presentation.
5. 164In a written submission added to the digital case file on 18 de abril de 2023, Rodrigo Arias Sánchez, in his capacity as president of the Legislative Assembly, states that Freddy Camacho Ortiz, director of the Departamento de Asesoría Legal, will attend the hearing on 4 de mayo de 2023 on his behalf.
6. 165In a written submission added to the digital case file on 18 de abril de 2023, Nayuribe Guadamuz Rosales, in her capacity as minister of Culture and Youth, states that she will be accompanied at the hearing on 4 de mayo de 2023 by Vladimir Cubillo Marenco, in his capacity as legal adviser to her office.
7. 166In a written submission added to the digital case file on 18 de abril de 2023, Wilber Madriz Arguedas, in his capacity as mayor of Puntarenas, states that he will participate in the hearing on 4 de mayo de 2023 in his capacity as mayor, together with attorney Carlos Ricardo Benavides Jiménez.
8. 167In a written submission added to the digital case file on 18 de abril de 2023, Franz Tattenbach Capra, in his capacity as minister of Environment and Energy, states that Rafael Gutiérrez Rojas, in his capacity as vice minister, was designated to attend the hearing on 4 de mayo de 2023 because the minister must attend to the international agenda. He states that Karen Quesada Fernández will also participate on behalf of SINAC, as will Ana Lorena Polanco, in her capacity as legal adviser to that office.
9. 168In a written submission added to the digital case file on April 18, 2023, Wilber Madriz Arguedas appears in his capacity as mayor of Puntarenas and states: “I shall address the principal arguments outlined by the petitioners, but not before briefly presenting certain information that I consider essential to understanding the origin and proper constitutional basis of Law 9892. 1- Historical, regulatory, and jurisprudential background of the Law Creating Isla San Lucas National Park, Law 9892. To fully understand the development of Law 9892, it is also necessary to understand the historical origins of the administrative, social, and cultural manifestations on Isla San Lucas over hundreds of years, as well as to bear in mind the regulatory evolution (laws and decrees) that has occurred with respect to its administration and purposes. It is likewise necessary to recall the judgments issued by this Constitutional Chamber in 2010 and 2011 when hearing constitutional challenges (acciones de inconstitucionalidad) against one of its decrees, as well as the judgment that decided an amparo proceeding (recurso de amparo) in 2011.All these elements were included from the Statement of Legislative Purpose accompanying the bill, as well as in the statements made by legislators throughout the legislative process. - Conquest Period. The island now known as San Lucas was visited by Gonzalo Fernández de Oviedo in 1529, upon the arrival of the Spaniards. According to his account, its Indigenous inhabitants called it “Chara,” but the Spaniards christened it “Sant Lúcar,” a name that would eventually become the present-day “San Lucas.” According to the historical research conducted by Antal B. Bálint (La Isla de San Lucas, 2nd edition, Biblioteca de la Colonia Agrícola, 1965), the Indigenous inhabitants of Chara spoke Nahuatl, although there was evidence that the island had previously been inhabited by the Caribes. “The island of Chara is what the Christians call Sant Lúcar…There are pearls on these islands; and I saw them on the islands of Chara and Chira and Pocosi; and I removed them from some oysters that the Indians brought us to eat…on these islands of Chara and Pocosi they have no canoes, but rather rafts made of four or five or six timbers tied at the ends, with other thinner poles laid crosswise in the middle…The island of Chara, which others call San Lúcar, lies at nine degrees and thirty-eight minutes, which is two-thirds of a degree less two minutes.” (Costa Rica vista por Fernández de Oviedo, Ministerio de Cultura, Juventud y Deportes, Imprenta Nacional, San José, Costa Rica, 1978, pp. 20-27). - Island for Trade.Law Nº 37 of August 3, 1847 granted San Lucas a trade franchise. - Establishment of the Prison. During the nineteenth century, the island was used as a place of political exile or for quarantine by the crews of foreign vessels. In 1873, Tomás Guardia ordered that it be converted into a prison. Law Nº 7 of February 25, 1874 regulated the penitentiary on San Lucas under the authority of the Governor of the Puntarenas District. Law Nº 89 of March 20, 1925 authorized the disbursement of forty thousand colones to reconstruct the buildings of the San Lucas penitentiary, including the necessary works for electric lighting and water supply, as well as ten thousand colones for the studies required to select the site of the new penitentiary. (Colección de Leyes y Decretos, semester 1, volume 2, p. 511). Law Nº 54 of June 13, 1934 allocated twenty thousand colones for electrical power services on the Island.(Colección de Leyes y Decretos, semester 1, volume 1, p. 512). The island thus operated as a penitentiary for more than one hundred years. It is estimated that most of its prison facilities were built during the 1930s. The hardships suffered by thousands of inmates and the violations of their human rights were chronicled in José León Sánchez’s world-famous work “La Isla de los Hombres Solos,” the best-known novel by a Costa Rican author worldwide. - Agricultural Colony Period. On December 10, 1961, the prison system underwent a profound change when the island became the so-called “Colonia Agrícola Penal de San Lucas.” Although very significant changes had been made to its regime since 1948, such as the prohibition of physical abuse and the closure of the former punishment cells, it was ultimately this Agricultural Colony that marked a profound transformation, led within the Consejo Superior de Defensa Social by Joaquín Vargas Gené, Manuel Guerra, and Héctor Beeche Luján.Lic. Rigoberto Urbina Pinto, in his capacity as Director General de Defensa Social, was responsible for implementing the project. - La Hacienda. Much of the island’s territory was transformed into what was called “La Hacienda,” whose principal activity consisted of raising Brahman cattle, pigs, and poultry, and producing bananas, corn, tomatoes, and other vegetables. At that time there was no forest whatsoever, and persons deprived of liberty (privados de libertad) produced agricultural and livestock goods throughout most of the island. The aforementioned writer Antal B. Balint wrote his work while he was himself a person deprived of liberty on the island: “During the rainy season there is such an abundance of pasture that the livestock cannot consume it all, and therefore many inmates are employed in clearing brush. In summer, when there are several months of drought, forage becomes scarce and it is necessary to resort to prepared feed.The pig farm is located near El Coco beach and has excellent breeding stock and good facilities. La Hacienda has several banana plantations to feed the pigs; in addition, they receive leftovers from the Colony’s various kitchens and by-products from La Hacienda that can be used for them.” “At El Coco beach there is another mixed poultry farm with geese, ducks, turkeys, chickens, and various ornamental birds. The birds are fed concentrated feed. There are also several horses used for riding. As for agriculture, the stony and clayey soil, rugged topography, aridity of the climate, and lack of irrigation water do not allow much to be done. During the rainy season, a not very abundant corn crop, tomatoes, and other vegetables can be produced” (Op. cit., pages 14 and 15). During those years, the island also had workshops where inmates manufactured brooms. Various items of furniture were also produced, and its carpentry workshop had abundant tools and several electric machines.Its mechanical workshop was also responsible for maintaining the island’s power plant. There were cultural activities and a library called “Manuel I. Guerra Trigueros,” in memory of one of the promoters of this correctional model. The building housing the library was the Colony’s most modern and beautiful structure. It was the idea of Joaquín Vargas Gené and was founded with the collaboration of José León Sánchez. It held thousands of books, most of them donated by various institutions. It was during this period that the Chapel was built, where various religious activities were held, initially under the sponsorship of the Hermanas Franciscanas del Colegio Saint Clare. - Transfer to the Municipalidad de Puntarenas. In 1974, Law 5469 provided that once the correctional facility was closed, the Island would become the property of the Municipalidad de Puntarenas, so that a tourism project could be developed there by taking advantage of the island’s natural and scenic wealth.“Article 1.- Ownership of Isla de San Lucas, located in the Golfo de Nicoya, is hereby transferred to the Municipalidad de Puntarenas.” “Article 2.- The Municipalidad shall use the Island as a tourist center, for which purpose it is authorized to contract for the necessary infrastructure works.” “Sole Transitory Provision.-The transfer referred to in Article 1 shall take place when the current penitentiary located on Isla de San Lucas is relocated elsewhere, for which purpose the Executive Branch is granted a period of two years to find a new location for that penitentiary, in accordance with the laws in force.” - Decree Incorporating the Property Known as Isla San Lucas into Costa Rica’s Historic and Architectural Heritage, Ministerio de Cultura. Through Decreto Ejecutivo 24520-C of August 25, 1995, the buildings comprising the former penitentiary located on Isla San Lucas were declared to be of historic and architectural interest.The architecture and graffiti of the former Penitentiary are considered extremely important because they bear witness to the history of how the State controlled and repressed persons deprived of liberty. Some of the penitentiary’s outstanding architectural elements deemed worthy of historic heritage status under the decree are: The landing. Essential for people to access the site and for supplying it. A concrete structure in contact with seawater. A concrete structure in contact with seawater. The stone causeway. An element connecting and directing the complex’s primary flow. The chapel. The quintessential architectural and symbolic element. La Comandancia. This is the two-story prison administration building. The entrance cells. The cellblocks. Of high historical and cultural value. The Medical Dispensary. A place where healthcare was provided to persons deprived of liberty and officials of the correctional facility.Sick persons from neighboring islands were also treated there. Barrio las Jachas. A symbol of the diversity of social strata and ways of life on the Island. The houses in the “Las Jachas” neighborhood are considered structures of cultural value representative of a way of life present in the Island’s history and must be preserved. Other structures. The Island has two houses, several ruins, stone corrals, internal roads, among other structures that formed part of La Hacienda de San Lucas during the Colonia Agrícola Penal period. - Decree Establishing the Wildlife Refuge (Refugio de Vida Silvestre). On February 12, 2001, the Decree Establishing the Isla San Lucas Wildlife Refuge, Decree Number 29277, was issued. In its Recitals (Considerandos), that decree recognized the importance of the “cultural features” of Isla San Lucas (recital 2), as well as the importance of “research, recreation, environmental education, and scenic beauty” through the “use of renewable natural resources, rationally exploited” (recital 5).Regarding its administration, Article 4 of that decree states: Article 4—The administration of the protected areas declared herein shall fall within the jurisdiction of the Ministerio de Ambiente y Energía and the institutions established under the regulations in force (…).” This wording allows us to conclude that, even with the establishment of the Wildlife Refuge, there was an awareness of the need to recognize the role of other institutions, such as the Municipalidad de Puntarenas (as the island’s registered owner and the entity entrusted by law with overseeing the tourism component together with the ICT) and the Ministerio de Cultura (as the entity with jurisdiction over the care and restoration of the island’s vast historic heritage). - Decree Expanding the Refuge, Declaring the Island’s Sustainable Tourism Development to Be of National Interest, and Establishing the Multi-Institutional Board of Directors. Through Decree Number 34282, published on August 08, 2008, the boundaries of the island were expanded to include the islets near the island and the marine area between those islets and San Lucas.

Additionally, through this body of regulations, the sustainable tourism development (desarrollo turístico sostenible) of San Lucas was declared to be of national interest and high priority: “Article 2—The sustainable tourism development of the island, under the terms of this decree, as well as the conservation and restoration of the buildings of the former penitentiary on Isla San Lucas, are hereby declared to be of national interest and high priority. The agencies of the Public Administration and the Private Sector, within their respective legal frameworks, may contribute financial resources, to the extent of their capabilities and without prejudice to the fulfillment of their own objectives, in order to support the sustainable tourism development of the Island.” A multi-institutional Permanent Commission was likewise entrusted with the administration of the Wildlife Refuge (Refugio de Vida Silvestre): “Article 3—A Permanent Commission is hereby created, composed of the Governing Ministers of Culture, Youth and Sports, Tourism, and Environment and Energy, or their representatives, and the Mayor of Puntarenas or the Mayor’s representative, charged with ensuring the rational management of lands under municipal administration.

The Commission shall have a General Coordination Secretariat, whose head shall be appointed by the President of the Republic.” Finally, the Instituto Costarricense de Turismo (ICT) was entrusted with preparing a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible) for the purpose of preserving cultural heritage and tourism activities: “Article 5—For the development of tourism activities in the area under municipal administration and the preservation of the island’s cultural heritage, ICT shall prepare a Sustainable Tourism Development Master Plan, which shall include an environmental impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve the objectives of economic, social, and environmental development, as well as the protection of the cultural heritage of that specific area (…).” It should be noted that, despite the filing of two constitutional challenges (acciones de inconstitucionalidad) against the (sic) cited Articles 2, 3, and 5, as well as Article 4 of that decree, this Constitutional Chamber found them consistent with Constitutional Law (Derecho de la Constitución) and kept them in force, as we shall see in the next section. — Rulings of Chamber IV on constitutional challenges against Decree number 34282 of the year 2008.

It is critically important to reproduce several of the passages comprising judgment number 13099-2010 of this Chamber in order to better understand how this Constitutional Court addressed the existence of a conflict of institutional powers (conflicto de competencias institucionales) connected with public rights and powers enshrined in our Political Constitution. This will provide a much clearer understanding of the enormous importance of Ley 9282 in promoting harmony among those constitutional rights and the complex framework of powers held by the Ministerio del Ambiente, the Ministerio de Cultura, the Instituto Costarricense de Turismo, and the Municipalidad de Puntarenas with respect to Isla San Lucas. Regarding the conflict of powers (conflicto de competencias), the Chamber framed the issue and then held that preservation of the environment, protection of historical heritage, and the role of the municipal body are reconcilable, and that both designations have equal standing under our Constitution: “In the action before us, there is an apparent conflict among Ley 5469 of 25 de abril de 1974, which is the Ley de Traspaso de la Isla San Lucas a la Municipalidad de Puntarenas; Ley No. 7554 of 13 de noviembre de 1995, which is the Ley Orgánica del Ambiente; and, finally, Ley No. 7555 of 4 de octubre de 1995, which is the Ley del Patrimonio Histórico-Arquitectónico de Costa Rica.

The substantive issue (cuestión de fondo) in this constitutional challenge is to determine which legislative provisions prevail, or whether they complement one another, in the case of Isla San Lucas; all of which requires us, for a better assessment, to reexamine the arguments presented in the action analyzed by the Chamber in its judgment No. 2004-08928.” (…) “However, in addition to what was previously decided concerning the violation of the principle of hierarchy of norms (principio de la jerarquía normativa) and the impairment of municipal autonomy (autonomía municipal) alleged by the Municipalidad de Puntarenas, Decreto Ejecutivo No. 30714-C (which predates the judgment reproduced above) is determinative for the discussion of this constitutional challenge. That decree was neither brought to the Chamber’s attention nor considered by it at that time, and it declares and incorporates into the Historical-Architectural Heritage of Costa Rica (Patrimonio Histórico Arquitectónico de Costa Rica) the property known as Isla San Lucas, in the province of Puntarenas, principally under Ley 7555, on the Patrimonio Histórico-Arquitectónico de Costa Rica.

This is an administrative act (acto administrativo) of equal validity to the act by which the Ministerio de Ambiente y Energía declared the Protected Wilderness Area (Área Silvestre Protegida), and each coexists within its respective sphere of authority.” With respect to the constitutional value of historical and cultural heritage and its economic importance, this Chamber held as follows: “For the foregoing reasons, the concept of historical-architectural heritage (patrimonio histórico-arquitectónico) has evolved, as have the criteria for its protection, such that it is no longer justified by a ‘romantic’ ideal, but rather as a condition of the identity of peoples and an integral part of their history and culture, based on considerations of socioeconomic and urban-environmental or urban-ecological development, and resting on a more human foundation. Protection by the States is therefore necessary, enabling effective and efficient action based on a scientific framework consistent with reality, both in the fields of territorial and architectural theories and in the legal field, insofar as it interacts with other disciplines and bodies of knowledge, such as History, Anthropology, Architecture, Restoration Theory, and Law, among others; and it must take into account the country’s particular circumstances, such as its level of underdevelopment and economic dependence.

The protection of this heritage must therefore be actively integrated into the country’s social and economic resources so that it does not constitute a burden on the State or on the population (owners, possessors, or holders of any right in rem (derecho real) over property incorporated into this special protective regime (régimen especial de tutela)), but instead becomes an additional resource that generates social well-being. XVII.—The protection of cultural heritage falls within Urban Planning Law (Derecho Urbanístico), which has recently come to be understood within the broader framework of Environmental Law (Derecho Ambiental), whose legal and constitutional foundation is found in Articles 50 and 89 of the Political Constitution, insofar as they expressly provide: ‘The State shall seek the greatest well-being of all the country’s inhabitants by organizing and promoting production and the most appropriate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. Accordingly, every person has standing to report acts that infringe that right and to seek redress for the harm caused. The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding liabilities and penalties’ (Article 50); and ‘The cultural purposes of the Republic include protecting natural beauty, preserving and developing the Nation’s historical and artistic heritage, and supporting private initiative for scientific and artistic progress’ (Article 89). The latter provision establishes guidelines for public authorities to promote environmental protection, understood comprehensively—that is, not in its traditional sense, which has been limited to the realm of natural resources, commonly known as ‘the green,’ insofar as it has been understood to encompass natural resources (forests, water, air, minerals, flora and fauna, etc.), but also with respect to the surroundings in which people live, including not only the scenic beauty of nature, such as the landscape, but also everything relating to cities and urban and rural population centers—that is, the concept of the urban environment.” Regarding the Convention Concerning the Protection of the World Cultural and Natural Heritage, approved by Costa Rica through Ley 5980, the Chamber held: “For this Chamber, the obligation established in Article 4 of the Convention is not exhausted by the formal designation of sites under a particular legal regime (national or international), but instead entails an affirmative and progressive function of the State, without prejudice to eventually obtaining financial, artistic, scientific, and technical benefits through the mechanisms provided for in the Convention.

Accordingly, cultural property may be put to use through its rehabilitation—that is, by enhancing its value as a source of financial resources. “As can be seen, the legal protection afforded by international instruments is the same for natural and cultural heritage; consequently, anything falling outside these standards will be unlawful, including neglect that worsens the condition of cultural property. In accordance with the foregoing, the Chamber must determine whether it is also a legitimate purpose of States to promote development through policies permitting the use of archaeological, natural-heritage, cultural-heritage, or mixed sites so that their value may be realized, as contemplated by Decreto Ejecutivo 34282-TUR-MINAET-C.” “Thus, the crux of the dispute in this action should not concern solely the conservation of the natural heritage of Isla San Lucas (understood only in ecological and environmental terms).

The Chamber has found that the passage of decades has allowed the regeneration of the secondary forest (bosque secundario), such that, in this respect, designation as a Protected Wilderness Area secured the protection of the Ministerio de Ambiente, Energía y Telecomunicaciones necessary for the recovery of areas previously used, for example, for livestock farming. However, the evident lack of maintenance of the historic center, its progressive deterioration, and the threat to the historical and cultural property existing on Isla San Lucas must not be taken lightly. The Executive Branch’s intention to develop ecotourism in the region as a measure to protect cultural heritage opens a new field of discussion that would consequently permit the reaffirmation of concepts and assets that are likewise internationally protected and are encompassed by the obligation contained in Article 89 of the Political Constitution, which identifies among cultural purposes the protection of natural beauty and the preservation and development of the Nation’s historical and artistic heritage.” Regarding the role of sustainable tourism and its importance within Constitutional Law, the cited judgment of the Chamber stated: “Among the State’s constitutional purposes is the development of policies that reduce social and economic disparities, duly adapted to the relevant environments, whether natural, rural, or mixed; all of this arises from the provisions of Article 50 of the Constitution.

Access to development, in terms of employment opportunities or quality of life, and therefore to economic progress, forms part of the recognition and advancement of human rights. Consequently, rural development through tourism should not require individuals to abandon their customs and traditional ways of life in order to migrate to cities, but rather to adapt them to present-day needs and advances.

In this regard, in the Chamber’s view, humanity’s true challenge is to generate progress and—why not—happiness (material and spiritual) without threatening the resources available in the environment; otherwise, this would simply result in social inequalities that prevent progress toward a new stage of human development.” Regarding the role and constitutional duty of the Legislature to promote rural development through tourism by combining natural heritage and cultural heritage, this Court held: “Now, tourism-based rural development must rest on other specific pillars: one of them is what legal scholarship identifies as the conservation of the values inherent in rural areas. This principle is based on the requirement that rural areas be conserved sustainably. In this regard, forests, the sea, mountains, volcanoes, mangroves, wetlands, etc., foster as many different types of development settings as there may be interests.

Each constitutes a scenic value subject to constitutional protection. However, the task of targeting and promoting this type of rural-development policy falls to the Legislature and the Executive Branch in the exercise of their constitutional functions. This Chamber must emphasize that conserving the particular characteristics of rural environments or natural or scenic surroundings is a value enshrined in Article 89 of the Constitution that requires protection, and such protection must be directed toward safeguarding the surroundings that enhance their value, not only as a rural area but also as a tourist destination, so that the positive effects are felt in neighboring communities (sic).” Regarding the constitutional principles of unity and coordination, in relation to the existence of the multi-institutional body established by the decree to administer the Wildlife Refuge (Refugio de Vida Silvestre), the Chamber stated unequivocally: “The State is a unified body of powers that must be subdivided according to degrees of specialization in order to fulfill its duties and purposes as set forth in the legal system.

If public bodies and entities must fulfill constitutional purposes (Articles 50 and 89) based on their degree of functional specialization, their coordination must be a priority in resolving problems that arise in the exercise of their respective powers: the Ministry of Environment, Energy and Telecommunications insofar as it oversees natural heritage; the Ministry of Youth, Culture and Sports with respect to policies for conserving historical heritage; the Instituto Costarricense de Turismo with respect to enabling and conserving historical sites and sites of natural beauty for tourism; and the Municipalidad de Puntarenas in safeguarding the local interests of its community. The Law Creating the Ministry of Culture, Youth and Sports, No. 4788, and the Historical and Architectural Heritage Law of Costa Rica, No. 7555, establish the Ministry’s specific sphere of authority as the governing entity in this field.” All the aforementioned historical, cultural, administrative, regulatory, and jurisprudential elements and events form the basis of Ley 9282 Creating Isla San Lucas National Park.

They were mentioned by legislators in the Explanatory Statement accompanying the bill that later became Ley 9282, as well as in the discussions recorded during its consideration in committee and in the legislative plenary session. The claim by the petitioners (accionantes) that the law lacks justification or is abrupt or arbitrary is untrue. On the contrary, it is the State’s most comprehensive legislative effort to harmonize the powers of the public entities with responsibilities concerning the island, as well as to harmonize environmental protection, the protection of historical and cultural heritage, and the right of citizens to visit and learn about the island’s heritage resources. We shall now examine the arguments raised by the petitioners. 2- The alleged reduction of the Protected Wildlife Area (Área Silvestre Protegida) asserted by the petitioners. Ley 9282 Creating Isla San Lucas National Park does not repeal the protected status of the territories encompassed by the Refuge; it merely changes the designation of most of the Refuge by converting it into a national park.

The remainder of the area belonging to that Refuge remains protected as such. A simple review of Ley 9282 shows that it contains no provision repealing the Refuge. The designation was changed for the island’s entire land area, as well as for the immediately surrounding waters (up to three meters). Those are the areas comprising the National Park. However, the areas not encompassed by Ley 9282 (consisting of several islets located some distance from the island and a marine area) did not lose their protection, as could not have occurred through an indirect effect of the law that was not expressly stated. The map prepared in 2021 by the Department of Topography and Territorial Observation of the Instituto Geográfico Nacional (IGN), and submitted in these judicial proceedings by the Office of the President of the Legislative Assembly, is highly illuminating in resolving this issue. For purposes of this municipal report, I likewise request that it be admitted as evidence.

It contrasts the current National Park with the Wildlife Refuge, making clear that the alleged removal of protection from certain areas never occurred. On the contrary, most of the Refuge became a National Park. The remainder continues as such. Below, I provide the aforementioned image of the map prepared for this purpose by IGN. 1097500 1098000 1098500 1099000 1099500 1100000 1100500 1101000 1097500 1098000 1098500 1099000 1099500 1100000 1100500 1101000 397500 398000 398500 399000 399500 400000 400500 401000 401500 402000 402500 403000 403500 404000 2021 LEGISLATIVE ASSEMBLY PREPARED BY THE INSTITUTO GEOGRÁFICO NACIONAL DEPARTMENT OF TOPOGRAPHY AND TERRITORIAL OBSERVATION YEAR: ISLA SAN LUCAS NATIONAL PARK R I O S A N J UA N REQUESTING PARTY: LEGEND National Refuge Boundary, Decreto 34282 Island San Lucas National Park, Ley 9892 Marine Area (sic) San Lucas National Park, Ley 9892 3- The alleged change in management category (categoría de manejo) and inclusion of a tourist zone without studies.

Tourist visitation areas in ALL national parks are used and managed differently from forest-covered areas. In Costa Rica, these visitation areas represent less than 4% of the total extent of all national parks and other protected wildlife areas. In each case, these visitation areas were defined through management plans (planes de manejo) prepared by SINAC, often on the basis of historical circumstances, as in the specific case of Isla San Lucas, given the existence of prison facilities and other old buildings that obviously were not created by nature. The so-called tourist zone identified in Ley 9282 is exactly the SAME tourist visitation area that has existed for nearly 50 years, and it is the same one established by the Island’s Management Plan prepared by SINAC in its most recent 2020 version, which designates it as the High-Intervention Zone (Zona de Alta Intervención, ZAI) and Medium-Intervention Zone (Zona de Mediana Intervención, ZMI); it also coincides with the Isla San Lucas Sustainable Development Plan issued by the Instituto Costarricense de Turismo.

This tourist visitation area or zone consists of lands that have been open to visitors for decades and are devoid of forest, where the historic buildings of the former prison are located (the common cells, dungeons, administrative building, church, medical dispensary, prison kitchens and laundry, commissary, the areas formerly occupied by the homes of administrative officials and well-behaved inmates, the corral and other La Hacienda facilities, and the library, pier, watchtowers and prisoner-reception facilities, the park-ranger houses (both former and current), the former prison’s water wells, the boat-landing areas in the bay, as well as the trails and roads built over more than 150 years by officials of the former prison, later by municipal officials, and more recently by SINAC officials (depending on who held responsibility for the island’s day-to-day administration), as well as the public beach area immediately adjacent to the ordinary high-tide line (pleamar ordinaria).

There is nothing new about this area and no room for inventing anything new. The petitioners are attempting to mislead those who do not know the island well or have never visited it. These are the same areas that have been occupied by human beings and used for various social and economic activities since at least the nineteenth century. There has been no alteration of the physical conditions of the forest areas (which are excluded from the tourist visitation zone). This matter has been addressed scientifically by various entities, particularly the Sistema Nacional de Áreas de Conservación (SINAC), a body of MINAE that prepared the Isla de San Lucas Management Plan. I repeat that its current version dates from 2020. That SINAC Management Plan designates the visitation area of what was then the Wildlife Refuge as the HIGH-INTERVENTION ZONE and the MEDIUM-INTERVENTION ZONE. This is fundamentally the same area that Ley 9282 designated as the Tourist Zone.

Below, we transcribe the description contained in the aforementioned SINAC Management Plan: “4.7.4 High-Intervention Zone (ZAI). The sectors of the ASP assigned to this category would have a much higher level of intervention and use than the other zones. The objective or desired condition will always be to remain in an environmental state consistent with the management category established for the RNVSISL, while allowing greater opportunity for practices and activities characteristic of a high level of intervention. As in the other zones, the conservation and development objectives are aimed at providing areas in which permanent, more intensive sustainable tourism activity can be maintained, as well as more open productive activities or resource use, while still subject to strict controls and rules. Intervention for administrative and special uses has greater potential for development, provided that it is properly planned and controlled (SINAC, 2016).

This zone comprises part of the marine area of Bahía San Lucas; the infrastructure of the former Presidio; Playa Cocos and Playa Tumbabotes; the Sendero a Playa Cocos, the Sendero a Playa Tumbabotes, the Sendero al Corral de Piedra, the Sendero a la Antigua Porqueriza, the Sendero a Playa El Inglés, the Sendero a Playa Hacienda vieja, the Sendero a Playa Bella vista, the Sendero a Punta de Oro (Punta El Coco), the Sendero Los Ceibos, the Sendero Mirador de Islas, and the Sendero El Trogón; as well as the two sites for Prevention, Protection, and Control infrastructure to be located in Tumbabote and Hacienda vieja. It also includes the sites of the Teca parcel and the new Guardaparques house.” In the case of the Medium-Intervention Zone, the Management Plan describes it on page 50 as follows: “4.7.3 Medium-Intervention Zone (ZMI). The area or sites assigned to this category will allow interventions of medium intensity, frequency, and impact in the practices and activities that may be carried out. The objectives are aimed at providing areas where resources may be used while controlling the impact on them, albeit within reasonable limits established by law.

Water resources, ecosystems, habitat, biodiversity, and cultural resources are maintained in an acceptable state of health. The Medium-Intervention Zone (Zona de Mediana Intervención, ZMI) consists of Sendero a Playa Cirial, Sendero a Punta Cañón; Punta Cañón; Playa El Inglés, Playa El Limón, Playa Hacienda vieja, and Playa Cirial.” The SINAC Management Plan then specifies the following as one of the activities to be conducted in the Medium-Intervention Zone: “Visits by organized groups of persons are permitted for tourism, educational, recreational, and scientific purposes.” As can be seen, this geographic description of the High-Intervention Zone (Zona de Alta Intervención, ZAI) and the Medium-Intervention Zone coincides with that of Law 9282 in its Article 6, which states: “ARTICLE 6—Tourism Zone. The areas corresponding to the buildings of the former San Lucas prison, including the pier, as well as the marine and terrestrial access area to the island, the properties, trails, and beach areas indicated herein, shall be designated as a Tourism Zone.

These areas are specified by the following coordinates: a) Area designated as Zona histórica: the site where the buildings of the former San Lucas prison are located, (…) b) Playa El Coco recreational area (…) c) Sector designated as Área de senderos (…) d) Area designated as Sector de agua (…)”. Tourism use is likewise permitted throughout the High-Intervention Zone under the aforementioned 2020 Management Plan issued by SINAC, as is the construction of infrastructure necessary to serve visitors. “The following are permitted in this management zone: - Recreational and tourism activities: guided walks along authorized trails to observe flora, fauna, and historical resources; noncommercial photography and video. - Construction of infrastructure to serve visitors (for example, visitor centers, restroom facilities, trails, overlooks, platforms, a cafeteria, and handicraft shops). - Construction of infrastructure for administration of the Refugio. - Scientific research and monitoring authorized in accordance with binding regulations. - Management of flora and fauna species for biological-restoration purposes is permitted, based on scientific knowledge, to fulfill the conservation objectives of the protected wildlife area (Área Silvestre Protegida, ASP), subject to prior authorization by SINAC. - Installation of equipment and construction of facilities of scientific interest or for management of the Refugio are permitted, subject to prior authorization by SINAC. - Filming and photography for scientific purposes and for disseminating information about the attributes and values of the ASP are permitted. - The installation and operation of nonessential services approved under current regulations are also permitted in this zone.” (Page (sic) 52, Plan de Manejo Isla San Lucas, year 2020, SINAC).

As can be seen, the areas classified by the Management Plan as High-Intervention areas, and therefore suitable for tourism activities and the construction of visitor facilities such as “visitor centers, restroom facilities, trails, overlooks, platforms, a cafeteria, and handicraft shops,” among others, as well as “the installation and operation of nonessential services,” as described in that Plan, are the same territories described in Law 9282. When enacting Law 9282, the legislators acted without any arbitrariness in establishing the area in which tourism activities may eventually be authorized (all pursuant to its Master Plan and the technical criteria of SINAC and the Centro de Patrimonio Histórico). It is essential to recall that, under Article 7 of Law 9282, all activities that may be conducted in that Tourism Zone shall be determined by a Master Plan, thereby subjecting them to scientific criteria: “ARTICLE 7—Scope and restrictions.

Parque Nacional Isla San Lucas shall be governed by a master plan prepared on the basis of technical criteria. (…)” As a corollary to the foregoing, the final paragraph of Article 9 of Law 9282 reinforces the technical and scientific nature of the administration of this zone and its subjection to those criteria regarding the protection of natural and cultural heritage, which are binding upon the Board of Directors in the exercise of each and every one of its powers: “Article 9—Duties and powers. The Junta Directiva del Parque Nacional Isla San Lucas shall have the following powers: (…) Regarding the conservation and preservation of historical and architectural heritage, the opinion of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail; regarding the protection of wildlife and conservation of the island’s biodiversity, the technical opinion of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail.

At the request of the Board of Directors, those entities shall provide their opinions as expeditiously as possible.” The petitioners express surprise that the beach area in the sector known as Playa El Coco is considered part of the recreational areas. Their surprise is itself surprising, because they are well aware that, while it was classified as a refuge, it was likewise used by visitors. The country’s beaches are and historically have been areas of public access and recreation for Costa Ricans, including beaches within national parks, a specific example being the internationally renowned Playa Espadilla in Parque Nacional Manuel Antonio, or the entire expanse of Parque Nacional Gandoca (sic) Manzanillo in the province of Limón. Although located within national parks, all these beaches have been visited by domestic and foreign tourists since time immemorial. The situation is identical at Playa El Coco, which has received visitors since the time of the aforementioned “Colonia Agrícola Penal” on San Lucas, throughout the years of municipal administration, and during the entire period in which it was a Refugio de Vida Silvestre.

In this respect, the law creating the National Park introduces nothing new regarding that sector of the island; rather, it reaffirms the historical use promoted by the State, including by the Sistema Nacional de Áreas de Conservación and its Management Plan for the island. To claim that this beach area was suddenly, improperly, or capriciously included in the visitor zone designated by Law 9282 is simply a reckless assertion that disregards the use made of that beach for more than a century and also reflects the petitioners’ lack of historical and legal understanding of how the island’s regulatory framework has evolved.

4—The alleged commercial purposes “disguised as sustainable purposes” in the “fragmentation” of the ASP The petitioners attempt to sensationalize the term “commercial,” which the law assigns to some of the activities that may be permitted by the administrative board (which is also subject to technical and environmental criteria). The petitioners disregard the fact that commercial activities already exist in national parks, such as the sale of food and beverages (for example, Parque Nacional Volcán Poás, with its large cafeteria, pastry area, and shop selling clothing, stuffed animals, books, handbags, and other volcano-themed merchandise, or the Los Arrayanes cafeteria and souvenir shop located within Parque Nacional Volcán Irazú); the sale of tourism-related merchandise (as in Parque Nacional Rincón de la Vieja or Parque Nacional Manuel Antonioi (sic)); or commercial lodging services at Albergue Base Crestones in Parque Nacional Chirripó, a large facility built of concrete and wood, with rooms capable of accommodating four tourists each, and equipped with showers and restrooms and therefore all the corresponding drinking-water and wastewater facilities.

A group of associations from that region, organized as the Consorcio Rural Comunitario, offers a variety of commercial services in Parque Nacional Chirripó, including “food services, a shop, equipment rental, lodging, and baggage transportation within Parque Nacional Chirripó,” as they themselves state on their website. Visit: https://www.chirripo.org/ SINAC itself likewise promotes these services on its official website: “Your visit will not only delight your senses but will also contribute to the development and well-being of neighboring communities by purchasing associated services such as baggage transportation, lodging, food, and souvenir sales.” Visit: https://www.sinac.go.cr/ES/ac/aclap/pnch/Paginas/default.aspx The aforementioned “associated services” are clearly commercial services provided in exchange for monetary consideration. Are the petitioners concerned that commercial internal-transportation activities may take place in a national park after that activity has been permitted and encouraged by the State for decades as the only means of access and transportation in Parque Nacional Tortuguero, through whose protected waters more than two hundred thousand tourists per year (SINAC data from 2022) travel peacefully aboard commercial vessels?

To say nothing of the commercial services provided by thousands of tour guides who operate daily within our national parks and charge for those services. Parque Nacional Isla San Lucas has no reason (sic) to lack such essential commercial services as a snack bar or cafeteria, a souvenir shop, or even transportation using electric wheelchairs so that persons with disabilities can tour the former penitentiary facilities, or the rental of berthing services at a pier designed to serve visitors. These are only some of the commercial services that could be provided in the future without any environmental impact and that are currently provided in other national parks. Although the petitioners may not understand them as such, all of these are commercial services. No one will provide them free of charge; not even the State, through MINAE, does so in the other national parks. I repeat: they are commercial services, although they are often euphemistically called “nonessential” services to obscure their purely commercial nature and distinguish them from the isolated service of mere environmental protection, a characterization that denies the immense importance of visitation to our national parks as the principal source of financial support for their existence.

All these services are commercial because they are provided in exchange for payment received by private-law persons, regardless of whether they are associations or other social organizations, or small entrepreneurs from the communities surrounding the aforementioned national parks. The petitioners use alarmist language to mislead the judges by insinuating that the commercial activities to be conducted on San Lucas might be of some other sinister nature, with negative environmental consequences, rather than those described above. That insinuation is deceptive and lacks any factual basis; it is the product of an imagination devoted to generating unfounded fears in this case. They disregard Article 9 of Law 9282, which governs the powers of the Junta Directiva de San Lucas, even though the provision clearly establishes the following as one of the Board’s powers: “f) To approve authorizations, use permits, and concessions for carrying out works and providing services in the Tourism Zone.” Then, in the following paragraph of the same article, it states: “In matters concerning the conservation and preservation of the historical-architectural heritage (patrimonio históricoarquitectónico), the criterion of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail, and for the protection of wildlife and conservation of the island’s biodiversity, the technical criterion of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail.” This provision, contained in the SAME article that sets forth the powers of the Board of Directors of Parque Nacional San Lucas, is neither vain nor gratuitous.

It is a clear legal determination establishing the limits and content of the measures that this board may adopt; its powers are not unfettered but are subject to the scientific or technical-environmental criterion of SINAC. No commercial, artistic, sporting, or transportation permit or authorization could be granted contrary to the technical or scientific-environmental criterion, precisely because ley 9282 so provides. 5- Regarding the Board of Directors that has administered the Park since 2020 The petitioners seek to have the Constitutional Chamber annul the statutory provisions under which an administrative board belonging to MINAE, as a deconcentrated body (órgano desconcentrado), and composed of the highest-level representatives of MINAE, the Ministerio de Cultura, the Instituto Costarricense de Turismo, the Cámara de Turismo de Puntarenas, and this Municipalidad de Puntarenas, participates in that administration, so that SINAC alone administers the island.

Such a claim violates the constitutional principle of Freedom of Legislative Configuration (Libre Configuración) and attempts to confer constitutional status on statutory provisions. Pursuant to Ley 5469, the Municipalidad de Puntarenas is the registered owner of that island and has obligations arising from that status. When the island’s land area was already a Wildlife Refuge (Refugio de Vida Silvestre) and certain public officials considered all authority regarding the island to belong exclusively to SINAC, this Constitutional Chamber determined that MINAE, the Ministerio de Cultura, and the Municipalidad de Puntarenas were all responsible for maintaining, conserving, and ensuring the proper use of the Historical and Cultural Heritage of that Refuge and its natural beauty. It so stated in the decision issued at catorce horas y treinta y siete minutos del veintitrés de marzo del dos mil once: “III.- Based on the established facts set forth in this judgment, the Chamber considers that the failure of the respondent authorities to take the necessary measures and carry out the appropriate actions to restore, preserve, and maintain the buildings of Isla San Lucas in good condition is unlawful and violates the rights protected by Articles 50 and 89 of the Political Constitution; accordingly, the appropriate course is to grant the petition for relief (recurso) in all respects against all respondent authorities.

Indeed, irrespective of the dispute concerning the administration of the assets of Isla San Lucas, on which the Constitutional Court refrains from ruling on this occasion (because it is an issue wholly beyond the summary nature of these amparo proceedings (proceso de amparo)), the obligation of all respondent authorities (including, of course, the Municipalidad del Cantón de Puntarenas) to protect natural beauty and conserve and develop the Nation’s historical and artistic heritage is plainly evident, in strict observance of the right protected by Article 89 of the Political Constitution. IV.- In the present case, however, it is evident that the deterioration of the facilities on Isla San Lucas is attributable solely and exclusively to the failure established in these amparo proceedings with respect to all respondent authorities, which must coordinate their future actions to preserve the resources and historical heritage of that site.

It is clear that the challenged situation is unlawful and infringes the Law of the Constitution (Derecho de la Constitución); accordingly, the appropriate course is to grant amparo relief, but not without first warning the respondents, pursuant to Article 50 of the Ley de la Jurisdicción Constitucional, not to repeat in the future the acts or omissions that warranted granting the petition.” Even more decisive was Judgment number 13099-2010 of this Constitutional Chamber, which ruled on the action brought against decreto ejecutivo 34282 TUR-MINAE-C and addressed precisely the same dispute now raised again by the current petitioners challenging ley 9282. Regarding the participation of various entities in administering a Protected Wildlife Area (Área Silvestre Protegida), this Chamber stated: “Accordingly, no incompatibility has been demonstrated between environmental protection and the conservation of cultural assets made available to humanity, on the one hand, and a project that must be developed in full integration with the environment and must encompass all its components without excluding any of them, on the other.

It bears recalling the supporting submission (escrito de coadyuvancia) of the Executive President of the Instituto Costarricense de Turismo, which specifically includes among the purposes ‘enhancement’ (‘puesta en valor’) as an essential aspect of access to human expressions on the Island. Thus, although the powers conferred by the Ley Orgánica del Ambiente authorize the establishment, by Executive Decrees, of regulated management categories (categorías de manejo) as Protected Wildlife Areas, another designation of the same legal nature has taken effect through the heritage declaration contemplated in the Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, by means of the respective declarations issued through Executive Decree. The involvement of the Municipalidad de Puntarenas is evident in the scope of application of Ley No. 5469, which effectuated the transfer of Isla San Lucas to the Municipalidad de Puntarenas and dates from 1974, and was ratified in the Ley sobre la Zona Marítimo Terrestre, Ley No. 6043 de 2 de marzo de 1977.

Specifically, Article 78 of that Law provides: ‘Isla de San Lucas shall retain its current legal status under the administration of the Municipalidad de Puntarenas.’ And section 82 of that same statutory text provides: ‘This Law concerns public policy (orden público) and repeals ... as well as all other provisions contrary to it, except ley No. 4071 de 22 de enero de 1968 and its amendments and Ley No. 5469 de 25 de abril de 1974. ...’ Moreover, this legislation remains in force and has not been expressly amended or repealed by subsequent legislation; it therefore remains effective provided that it does not violate environmental and historical-architectural heritage principles and does not contravene the policies of the governing bodies, a matter that must be resolved by all bodies and entities involved.” 6- Regarding concessions (concesiones) and authorization to construct docks and landing facilities in national parks To begin our argument against the petitioners’ assertions in this section, I wish to note that the new Centro Operativo Cuatro Esquinas opened within Parque Nacional Tortuguero as recently as 2020.

With an investment exceeding ₡1.110 million, the infrastructure has a total area of 1.800 square meters and includes accommodations for personnel and volunteers working in the national park, as well as a multipurpose hall, storage facilities, and a boat dock. All of the foregoing was constructed by SINAC for use by its officials with public funds derived from the tickets purchased by tourists to enter that national park. (See the 26 de agosto del 2020 edition of the newspaper La República, in the report entitled “Minae y Sinac entregan nuevo centro operativo del Parque Nacional Tortuguero”). This simple example from our circumstances clearly illustrates the petitioners’ conceptual and legal error. The petitioners once again employ their strategy of imaginatively exaggerating the possibilities that ley 9892 grants to the public administration currently responsible for that park. When Article 7 of the Law refers to the possibility of having facilities on the island “other than those of the park service,” it does so precisely to permit a dock that properly addresses the needs of tourism, making it sustainable from both a human and economic perspective.

To aspire to have a first-rate landing facility capable of accommodating persons with disabilities or older adult visitors, Parque Nacional Isla San Lucas cannot settle for receiving them at a dock designed to serve the park rangers of these protected wildlife areas. Serving visitors sustainably requires allowing for the possibility of a dock designed for tourism, which is entirely consistent with actual circumstances. At present, the only dock on Isla San Lucas is the more-than-one-hundred-year-old Muelle histórico, which has serious structural deficiencies and poses a danger to visitors, who constitute the vast majority of those who visit the island, rather than the few park rangers who live there. This article is intended to allow future facilities conceived and designed for the safety and comfort of visitors who will access the small portion of the island open to visitation (5%), and that is the proper interpretation of the provision challenged by the petitioners.

There has been no abuse whatsoever of legislative discretion (discrecionalidad legislativa); rather, this is a provision consistent with actual circumstances, with the needs of the human beings who visit the park, with Articles 50 and 89 of the Political Constitution, and with the principles of Freedom of Legislative Configuration, Unity, and Coordination. Making tourists entirely dependent on whatever facilities the park service may choose and be able to construct solely for its own purposes is misguided and shows disregard for the intrinsically sustainable-tourism character that national parks have had since their inception. The manner in which the State may ultimately construct the facilities—whether it builds them directly or (sic) grants a concession for a landing facility, for example—does not give rise to any constitutional violation, provided that this is done within the framework of sustainability and the protection of natural and historical-heritage resources.

The origin of national parks and their connection to tourism. Ley 1917 del 30 de julio de 1955, which created the Instituto Costarricense de Turismo, declared the area within two kilometers of the craters of the country’s volcanoes to be a national park; this Law also established the Turrialba and Irazú volcanoes as national parks. Article 6.- The safeguarding and conservation of the areas within a radius of two kilometers around all the craters of the country’s volcanoes is entrusted exclusively to the Instituto Costarricense de Turismo, pursuant to Article 5, subsections e) and f), of this Law, and those areas are hereby declared National Parks. To conserve the native landscape, flora, and fauna, the Instituto shall issue the regulations that persons wishing to visit these National Parks must follow and may establish such admission fees as it considers appropriate; the proceeds thereof shall be used for their conservation and beautification and to provide greater amenities for visitors.

The Instituto may also construct roads, hotels, and other buildings therein, endeavoring in every instance to preserve the site’s original environment and landscape. “Article 5.- The Instituto shall have the following functions: (…) f) The maintenance of National Parks in such places as it deems appropriate. For purposes of the corresponding expropriation (expropiación), a decision issued by the Instituto declaring areas to be National Parks shall be deemed grounds of public utility or social interest.” That provision remains in force. The current version of that 1917 law provides: “Article 64.- (The first paragraph was repealed by Article 1 of Law Nº 4071 of 22 January 1968, ‘Declara Zona Urbana de Ciudad de Puntarenas y Reforma Otras Leyes’) The Atlantic zone extending from the upper reaches of the Cerere River (a tributary of the Estrella), upstream from its confluence with the Cusuco, eastward, encompassing the Aguila (sic) and Chey Rivers (the latter a tributary of the Telire), is hereby declared a reserved zone (zona reservada) designated as a National Park, to be placed under the care of the Instituto de Turismo.” “Transitory Provision IV.- The State, through the Instituto Geográfico Nacional, shall endeavor, within the shortest possible period, to identify the areas of the national territory that, pursuant to Article 5, subsection f) of this law, are to be declared National Parks.” Through the foregoing discussion of certain provisions, I wish to emphasize that, within the conceptualization of National Parks in Costa Rica, legislation has always linked their existence to tourist visitation.

It would be materially impossible to cover the cost of our national parks without the billions of colones paid annually by tourists. It is therefore evident that all our national parks must have the facilities necessary to provide the assistance these tourists require for their safety and comfort, such as tourist docks or landing facilities at sites accessed by water, as is the case with San Lucas. According to the SINAC website, in 2019 the National Parks were visited by 2.263.231 tourists. In 2020 (in the midst of the pandemic), the figure was 1.176.464. In 2021, 1.705.228 visitors paid admission. And in 2022, 2.346.028 tourists purchased tickets to enter our parks. From April 2020 through December 2022, foreign and domestic tourists paid SINAC the sum of ₡ 20.161.987.824 (Twenty billion one hundred sixty-one million nine hundred eighty-seven thousand eight hundred twenty-four colones).

I repeat: maintaining the parks without tourism is economically unfeasible. And keeping those parks open to tourism without adequate facilities is inhumane and contrary to our legislation. The applicants’ arguments in this regard are entirely senseless and are inconsistent with Constitutional Law (Derecho de la Constitución) and the country’s reality. 7- The park’s allegedly “uncertain” funding. The funding provided for by Ley 9892 is far greater than that currently available to the other national parks. The law allows contributions of resources by the State and private entities, as well as international donations. Most importantly, however, it states that this park will receive the funds ordinarily allocated to national parks by SINAC. We consider the mere transcription of the relevant provisions sufficient to demonstrate how unfounded the applicants’ argument is: “ARTICLE 17- Funding. Parque Nacional Isla San Lucas shall have financial resources enabling it to carry out its mandates promptly and efficiently.

These shall include the resources allocated to it by law from Sistema Nacional de Áreas de Conservación (Sinac), transfers from the budgets of the Republic or donations from any natural or legal person (persona física o jurídica), as well as the revenue it generates from admission to the park, the use of its services, fees for concessions and permits and, generally, payment for activities conducted within the park. The resources governed by this law, as well as all resources generated by the park, shall necessarily and exclusively be invested in that same national park. Oversight shall be the responsibility of Contraloría General de la República.” “ARTICLE 18- Authorization to donate and subsidize. The entire state, non-state and financial public sector is hereby authorized to make donations and investments and to include budgetary subsidies for Parque Nacional Isla San Lucas. Instituto Costarricense de Turismo (ICT) may transfer financial resources to Junta Directiva del Parque Nacional Isla San Lucas for its investments in development and ordinary activities; it may also design and conduct promotional and marketing activities to encourage visitation to the park.

Junta Directiva may receive donations from international organizations and foreign governments interested in assisting with the park’s purposes.” A straightforward reading of the foregoing articles clearly shows that sufficient provisions exist to ensure the financial sustainability of this National Park. Conclusions. Ley 9892 is supported by material, historical, natural, regulatory and jurisprudential elements established by this Chamber, which address the particular nature of Isla San Lucas. This is set forth in the explanatory statement (exposición de motivos) accompanying the corresponding bill. The area designated for tourist visitation in Ley 9892 is the same area that historically contained the former prison facilities, together with the trails, water access to the island, El Coco beach and other areas used for tourist visitation for decades, all of which are likewise endorsed by the Island Management Plan (Plan de Manejo de la Isla) issued by SINAC and the Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible) prepared by ICT.

The creation of the National Park converted most of the Wildlife Refuge (Refugio de Vida Silvestre) into a Park, but did not repeal the existing protection of the areas not included within it; those areas continue to enjoy the protection they have held since 2001 and 2008 under the respective decrees. The creation of the park in no way reduced the protected area. Since law 9282, a National Park Area (consisting of the entirety of Isla San Lucas together with its surrounding waters to a depth of 3 meters) has coexisted with the islets near the island incorporated as a Refuge under the 2008 decree, as well as the remainder of the waters that were and continue to be protected under that provision. The existence of a body belonging to MINAE, composed of the head of that ministry together with the heads of Cultura, ICT and Municipalidad de Puntarenas, is consistent with the constitutional principles of Coordination and Unity, as well as the principle of Legislative Discretion (Libre Configuración).

All of this was stated by this Chamber regarding the joint administration of Isla San Lucas in judgment 13099 of 2010. For all the reasons set forth by this Alcaldía Municipal, I request that the actions brought against the aforementioned Ley 9892 be DISMISSED and that we be allowed to continue working for the benefit of the citizens of Puntarenas and toward better economic opportunities for their comprehensive development in harmony with the environment and with their historical and cultural heritage.”

1. 169By written submission incorporated into the digital case file (expediente digital) on 2 de mayo de 2023, Magda Inés Rojas Chaves, in her capacity as deputy attorney general of the Republic, states that she will appear at the hearing on 4 de mayo de 2023 together with Elizabeth León Rodríguez.
2. 170On 4 de mayo de 2023, a hearing certificate (constancia de vista) was incorporated into the case file, which reads: “I, the undersigned, in my capacity as Secretary of the Sala Constitucional, hereby certify that at eight thirty-five in the morning on cuatro de mayo de dos mil veintitrés, the oral hearing scheduled in the constitutional challenge (acción de inconstitucionalidad) being processed under case file 21-005756-0007-CO commenced. Present at those proceedings were justices Fernando Castillo Víquez (President), Paul Rueda Leal, Luis Fdo. Salazar Alvarado, Jorge Araya García, Anamari Garro Vargas, Hubert Fernández Argüello, and José Roberto Garita Navarro. Also in attendance were Álvaro Sagot Rodríguez and Anais Villalobos Kong, in their capacity as petitioners, Magda Inés Rojas and Elizabeth León, representatives of the Procuraduría General de la República, Freddy Camacho Ortiz, director of the Departamento Legal de la Asamblea Legislativa, Vladimir Cubillo Marenco, legal counsel to the Ministerio de Cultura y Juventud, Rafael Gutiérrez Rojas, vice minister of Ambiente y Energía, Karen Quesada Fernández, legal counsel to the Sistema Nacional de Áreas de Conservación (SINAC), William Rodríguez López, executive president, and José Francisco Coto Meza, legal counsel to the Presidencia Ejecutiva del Instituto Costarricense de Turismo, Wilber Madriz Arguedas, mayor, and Carlos Ricardo Benavides Jiménez, legal counsel to the Municipalidad de Puntarenas, José Correu, adviser to the Oficina Regional de la Unión Internacional de Conservación de la Naturaleza, and Jorge Alberto Sendero Hülssner, in his capacity as an intervenor in support (coadyuvante).The presiding justice of the Chamber allotted the petitioners fifteen minutes to present their arguments, while the remaining parties were allotted ten minutes, except for the intervenor in support, who was allotted five minutes. During this stage, Mr. Correu stated that he had made an error in the report he submitted to the Court and would therefore file the corresponding correction in the case file. For his part, Mr. Serendero stated that he was yielding his allotted time to petitioner Sagot Rodríguez; however, the presiding justice of the Chamber denied that request because granting it would infringe the principle of equality of arms (principio de igualdad de armas). Upon completion of this stage, the parties were allotted up to three minutes to exercise their right of reply. At ten thirty in the morning, the presiding justice of the Chamber ordered a fifteen-minute recess. At ten forty-eight in the morning, the hearing resumed, and justices Rueda Leal, Fernández Argüello, Castillo Víquez, and Garro Vargas proceeded to question the parties.At the conclusion of this stage, and at a party’s request, the presiding justice allotted petitioner Sagot Rodríguez and Mr. Carlos Ricardo Benavides Jiménez one minute to deliver final remarks. Lastly, the presiding justice concluded the hearing at eleven fifty in the morning. That is all.”
3. 171By written submission incorporated into the digital case file on 8 de mayo de 2023, evidence was submitted for inclusion in the case file.
4. 172By written submission incorporated into the digital case file on 9 de mayo de 2023, José Francisco Coto Meza, in his capacity as general attorney-in-fact for judicial matters (apoderado general judicial) of the ICT, submits evidence to aid adjudication (prueba para mejor resolver) and states: “the aforementioned decision was issued at the request of the SISTEMA NACIONAL DE ÁREAS DE CONSERVACIÓN, for the purpose of obtaining environmental approval (viabilidad ambiental) for the Isla San Lucas docking facility. Technical approval (viabilidad técnica) was duly granted by SETENA. The foregoing clearly demonstrates that SINAC did request the development of a docking facility as infrastructure necessary for the development, maintenance, and administration of the aforementioned Island.”
5. 173By written submission incorporated into the digital case file on 10 de mayo de 20223, Wilber Madriz Arguedas, in his capacity as mayor of Puntarenas, states: “I hereby submit an electronic copy of the various documents that we offered to provide during the Hearing held by that Sala Constitucional last jueves 04 de mayo del 2023. 1. Minutes of the Junta Directiva del Parque Nacional Isla San Lucas from 2020 through 2023. Those minutes reflect the harmonious work and joint investment of the various institutions comprising the Governing Board established by Ley 9892. They also show the ongoing participation of SINAC and its regional body, ACOPAC (Área de Conservación del Pacífico Central), as the technical advisory body to that Governing Board. More precisely, the direct participation of officials from that body can be verified in sessions 01/20, 02/20, 01/21, 03/21, 05/21, 06/21, 07/21, 01/22, 02/22, 05/22, 07/22, 09/22, 10/22, 01/23 and 02/23; moreover, the Vice Minister of the Ministerio del Ambiente (MINAE), accompanied by his advisers, presided over 100% of that Governing Board’s sessions.The minutes demonstrate the absence of conflicts regarding the conservation and management of natural or cultural resources. On the contrary, they clearly show the coordination of the work of all participating entities and strict adherence to the various meticulous technical studies, whose existence is documented in those minutes. 2. Official letter number CR-INCOP-PE-0056-2022, dated 27 de enero del 2022, from the Instituto Costarricense de Puertos del Pacífico (INCOP), setting out an account of the investments made by that institute in the Parque Nacional Isla San Lucas, totaling 984.604.910 (Novecientos ochenta y cuatro millones seiscientos cuatro mil novecientos diez colones), which were approved by SINAC and the Ministerio de Cultura and underwent the corresponding permitting process before the Secretaría Técnica del Ambiente (SETENA). Particularly noteworthy is the content of pages 10 and 11, which recounts that the Project for the construction of the Parque Nacional Isla San Lucas Docking Facility was submitted by the Director of SINAC: “3.2 Docking Facility on Isla San Lucas.This project was submitted by the Executive Director of SINAC through a duly signed form on 29 de setiembre de 2020 and ranks first in the Trust’s Project Bank, with a prioritization score of 87.5, analyzed, assessed, and awarded by the Instituto Costarricense de Turismo (ICT). During 2021, the ICT conducted the bidding process (licitación) for the procurement of professional services to prepare the designs, plans, detailed construction budget, and schedule. Nevertheless, despite three bidding processes having been conducted for the procurement, none of them met the minimum admissibility requirements established in the tender specifications (cartel), and they were therefore declared unsuccessful. During the previous year, the bidding process was conducted again; that is, it was put out to bid for the fourth time at the beginning of the current year, and the technical opinion of the implementing unit was issued for the award recommendation.If the entire procurement process has a favorable outcome, execution is expected to begin during the first quarter, for which a budget of ¢51,480,000.00 millones de colones is projected. Once that stage has concluded, the aforementioned documentation has been delivered to INCOP, and the corresponding agreement between the parties has been signed, a company will be hired to submit the project to SETENA in order to obtain environmental approval; if environmental certification (certificación ambiebtal [sic]) is obtained, a company would then be hired to construct the project through a public bidding process (licitación pública), provided that it is approved by the INCOP governing board.” 3. Presentation by the Sistema Nacional de Áreas de Conservación (SINAC) of the 2021 Study on Visitor Flow Management (Estudio para el Manejo de Flujos de Visitantes) in the Parque Nacional Isla San Lucas, delivered by MSc. Rosa Montero of SINAC’s Área de Conservación Pacífico Central (ACOPAC), using data provided by fellow ACOPAC official Olger Núñez.As can be seen in that study, SINAC itself identifies the need for a new Pier, a Visitor Control and Service Center, and a 30 metros de alto Tower to provide internet service within the National Park, among other infrastructure needs, as also exist in many other national parks in Costa Rica. 4. News reports from La República and El Mundo regarding the construction of a Pier for vessels and other works in the Parque Nacional Tortuguero, a facility built by SINAC at a cost exceeding mil millones de colones and inaugurated in agosto del año 2020, for use by its officials and tourists.”
6. 174In a written submission incorporated into the digital case file on 11 de mayo de 2023, the petitioner Álvaro Sagot Rodríguez states: “By way of a summary of the hearing and the new evidence: REGARDING COMMERCIAL PURPOSES IN NATIONAL PARKS It is important to make clear that there are statutory provisions, linked to Articles 50 and 89 of the Constitution, that expressly prohibit commercial purposes in national parks, such as the Ley del Servicio de Parques Nacionales, which provides in Article 8, subsection 15: “Article 8.- Within national parks, visitors are prohibited from: … 15) Engaging in any type of commercial activity...” For its part, Article 3 in fine of the Convención para la Protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América establishes that any commercial use within a National Park is entirely prohibited. The provision states: “ARTICLE 3 The Contracting Governments agree that the boundaries of national parks shall not be altered, nor shall any part thereof be alienated, except by action of the competent legislative authority.The resources existing therein shall not be exploited for commercial purposes.” Notwithstanding the foregoing, several provisions of the challenged law state that commercial agreements are permitted for both essential and nonessential services in order to fulfill the law’s commercial tourism purposes, and this unrestricted opening could generate significant adverse environmental impacts at a site designated by law for protection. The question that has always remained, then, is: If commercial purposes were intended, why was its status as a reserve not retained, where commercial purposes are permitted with prior authorization from SINAC? Indeed, under the current law, the marine portion of the national park could soon be subject to a massive influx of jet skis and other recreational vessels, or its terrestrial portion to Burger King, KFC, and other restaurants, because he who may do the greater may do the lesser, as the old adage goes; the truth is that everything is permitted and left to the judgment and decision-making of business owners, tourism chambers, and politicians, while SINAC was, of course, excluded, having been expelled by the legislators, notwithstanding the provisions of the Ley de la Biodiversidad concerning the administration of protected wilderness areas (áreas silvestres protegidas) generally.Now, if the legislators wanted to open both essential and nonessential services to commercial activity, why did they not first amend the Ley del Servicio de Parques Nacionales, or why did they not denounce the conventions prohibiting such commercial purposes in parks? The answer is very simple: the legislators improvised without conducting the required studies. Article 14, subsection g, among other provisions of the challenged law, states that the trust is responsible for: “g) Approving agreements and contracts for the provision of recreational and/or commercial services, as well as essential and nonessential services, in order to achieve the fullest use of the Tourism Zone and enjoyment by visitors.” A declaration of unconstitutionality and incompatibility with international conventions is therefore warranted. REGARDING INFRASTRUCTURE There is also a sweeping opening with respect to infrastructure that goes beyond park-ranger facilities and basic or nonessential services; as evidence thereof, see Article 16 of the law, which provides: “The Parque Nacional Isla San Lucas may develop all infrastructure necessary to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, moorings, food services and access routes, information and communication in various formats, as well as any infrastructure it deems appropriate for the benefit of visitors and to ensure the enjoyment and appreciation of the park’s historical, architectural and natural wealth.” Now combine those two openings—the ability to build every type of infrastructure and the aforementioned freedom to establish concessions and commercial contracts—and you have the perfect setting for creating a distorted urban amusement park at a site whose legal nature is protective, as established under both domestic law and international conventions.Note that Article 7 of the law states in its second paragraph: “For purposes of fulfilling the objectives established in this law, concessions and permits may be granted in the tourism zone for activities and facilities other than park services.” Accordingly, if he who may do the greater may do the lesser, the law creates an opening that is inconsistent with what is permitted in a national park. We emphasize, based on the foregoing, that it is dangerous for the law as a whole to remain in force, because it contravenes the established rules and, worse still, NO STUDIES WERE EVER CONDUCTED for that purpose; in other words, in addition to grounds of unconstitutionality, there are incompatibilities with international conventions that must be declared, and the principle of scientific protection (principio de tutela científica) and the principle of progressivity (principio de progresividad) are also violated.And, of course, this results in regression because of the loss of protection and the failure to observe the express provisions in force. Nothing can be found to justify that “sustainable” tourism zone, much less any basis in our legal provisions, such as the still-applicable Ley del Servicio de Parques Nacionales or the Convención para la Protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América. The truth is that no study ever assessed the environmental impact within the park, and that fact alone cannot be justified by the argument that “a new form of governance in national parks” was being sought, as was repeatedly stated by the Municipalidad de Puntarenas. The entire provision therefore clearly reflects a commercial, economic-driven purpose contrary to express domestic provisions and international conventions, and it should be declared as such.REGARDING THE MANAGEMENT METHODS FOR TWO PROTECTED WILDERNESS AREAS OF VERY DIFFERENT LEGAL NATURES It is clear that, through the new boundaries created by the challenged law, the reserve and the park have been divided WITHOUT STUDIES, without any indication of the reasons for that decision or the consequences of this binary form of administration. To date, the social, economic, and environmental effects remain unknown, and you did not hear them addressed at the hearing either. On the one hand, it is now stated, belatedly, that there is a national park adjoining the existing reserve, but the only evident fact is legislative improvisation. Even today, we do not know why SINAC was excluded from the administration. In other words, because of the lack of justification, numerous questions now remain: 1. What justified setting the park’s depth at 3 meters? 2. Why did the law not specify whether the low-tide line or the high-tide line was to be used to establish the beginning and end of the park’s marine portion? 3.What is the social and economic impact of the new demarcation, including on artisanal fishers, for example? 4. Does the new division between the two protected wilderness areas impair the artisanal fishers’ human right to food1? 5. On the basis of what studies did the legislators conclude that the economy of artisanal fishers—who previously could fish from the island’s land area—would not be harmed?6. Who will bear the artisanal fishers’ economic losses and food-related harm? 7. Where does this leave the wetlands, which, on the one hand, are highly fragile sites extending up to 6 meters from the low-tide line, while the park now extends to 3 meters, without specifying whether this is measured from low tide or high tide? (sic) 8. As stated by the IUCN representative, Mr. Courrou, where are the studies determining the environmental impacts along the boundaries of the two protected wilderness areas, which clearly have different management categories (categorías de manejo), but with respect to which nothing has been done? 9.Does the law violate the principle of evidentiary grounding (principio de objetivación) and the principle of progressivity by establishing the boundaries of the new park? 10. Finally, as we stated in the constitutional challenge (acción), a sustainable tourism area was delimited and georeferenced for economic and cultural purposes, yet the island is replete with other sites of archaeological and cultural wealth that were not included within that special protection, and we cannot understand why; even though they are located within a national park, the area should not have been fragmented, differentiated, and excluded, nor should one area have been designated for commercial tourism with special protection for cultural and archaeological treasures and scenic beauty, because there is no technical justification for doing so. 11. The question concerning the remaining archaeological sites is valid, because it is unknown whether those other locations will receive the same professional and financial assistance as the prison areas, since, under the law, it appears that only the penitentiary portion is deemed to be of particular interest. 12.It is clear that the law creates numerous uncertainties that cannot be resolved even through an interpretive ruling concerning several provisions, because the entire law is riddled with unconstitutionalities and incompatibilities with international conventions. In closing, we ask you to note that, while the law was still being drafted, SINAC issued an opinion stating that NO studies existed in various fields for the bill; it is therefore essential to consider that document, recently submitted to this case file by the authorities, because it substantiates what was stated by the SINAC representative, the MINAE representative, and the IUCN representative.”
7. 175In a written submission incorporated into the digital case file on 15 de mayo de 2023, Madga Inés Rojas Chavez appears in her capacity as Deputy Attorney General. She states: “As indicated in the report of 22 de abril de 2021 and in our participation at the oral hearing, the Procuraduría considers that Law no. 9892 violates Article 50 of the Constitution by infringing the principles of progressivity and non-regression in environmental matters, the principle of objective grounding of environmental protection, and the principle of reasonableness. To reach that conclusion, it is necessary to review the legal regime governing protected wilderness areas (áreas silvestres protegidas) and the particular characteristics of isla San Lucas, as we did in legal opinion no. OJ-082-2020 of 9 de junio de 2020, concerning bill no. 21287, which gave rise to the challenged law. I. On the legal regime governing protected wilderness areas.Under Article 58 of the Ley de Biodiversidad (no. 7788 of 30 de abril de 1998), a protected wilderness area is a delimited geographical area comprising land, wetlands, and portions of the sea that is so designated because of its special significance in terms of its ecosystems, the existence of threatened species, its role in reproduction and other needs, and its historical and cultural significance; and that is dedicated to conserving and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services generally. Article 32 of the Ley Orgánica del Ambiente (no. 7554 of 28 de setiembre de 1995) identifies forest reserves, national parks, biological reserves, national wildlife refuges, wetlands, and natural monuments as management types or categories for protected wilderness areas. Based on Article 38 of the Ley Orgánica del Ambiente, Article 39 subsection i) of the Ley Forestal (no. 7575 of 13 de febrero de 1996), and Article 2° of the Ley de Conservación de la Vida Silvestre (no. 7317 of 30 de octubre de 1992), we have repeatedly concluded that protected wilderness areas form part of the State’s natural heritage (patrimonio natural del Estado).(See, for example, our opinions nos. OJ069-2008 of 12 de agosto de 2008, C-134-2016 of 8 de junio de 2016, OJ-088-2018 of 18 de setiembre de 2018, OJ-036-2019 of 20 de mayo de 2019, among others). The Sala Constitucional has likewise held that: “The State’s Natural Heritage is property in the public domain whose conservation and administration are entrusted by law to the Ministerio del Ambiente y Energía through the Sistema Nacional de Áreas de Conservación (Ley Forestal, Articles 6 subsection a and 13 paragraph 2°, and 14; Ley Orgánica del Ambiente, Article 32, paragraph 2°). It comprises two major components: a) Protected Wilderness Areas, regardless of their management category, declared by Law or Executive Decree: forest reserves, protective zones, national parks, biological reserves, national wildlife refuges, wetlands, and natural monuments (Ley Forestal 7575, Articles 1°, paragraph 2°, 3° subsection i; Ley Orgánica del Ambiente 7554, Article 32; Ley de Biodiversidad N° 7788, Articles 22 et seq. and 58; Ley del Servicio de Parques Nacionales N° 6084, Article 3° subsections d and f, in conjunction with the Ley Orgánica del MINAE N° 7152 and its Regulations; Ley de Conservación de la Vida Silvestre N° 7317, Article 82, subsection a). b) All other State- and public-institution-owned forests and forestlands or lands suited for forestry (Article 13 of the Ley Forestal), which are immediately subject to a statutory public-use designation (afectación legal).With respect to the maritime-terrestrial zone, Ley 6043 itself (Article 73) excludes Protected Wilderness Areas from its scope and subjects them to their own legislation. The remaining forested areas and lands suited for forestry along the coasts are also administered by the Ministerio del Ambiente and governed by their specific regulations (Ley Forestal, Article 13 and related provisions). (Vote no. 16975-2008 at 14 hours 53 minutes on 12 de noviembre de 2008. Reiterated in Votes nos. 17650-2008 at 12 hours and 23 minutes on 5 de diciembre de 2008, 16938-2011 at 14 hours 37 minutes on 7 de diciembre de 2011, and 17397-2019 at 12 hours 54 minutes on 12 de setiembre de 2019). The inclusion of protected wilderness areas within the State’s natural heritage has significant consequences. First, it means that, pursuant to Article 32, second paragraph, of the Ley Orgánica del Ambiente; Articles 6 subsection a) and 13, second paragraph, of the Ley Forestal; and Articles 22 and 28 of the Ley de Biodiversidad, those areas must be administered by the Sistema Nacional de Áreas de Conservación, to the exclusion of any other public entity.(In this regard, see the previously cited Sala Constitucional Vote no. 17397-2019). Second, because they form part of that heritage and pursuant to Article 18 of the Ley Forestal and Article 11 of its Regulations, only training, research, and ecotourism activities may be conducted in protected wilderness areas, as established in the applicable management plan (plan de manejo), along with works for the use of water for human consumption, under a recently enacted amendment. (See our opinions nos. C-103-1998 of 8 de junio de 1998, C-016-2002 of 15 de enero de 2002, C-134-2016 of 8 de junio de 2016, OJ-0272018 of 28 de febrero de 2018, OJ-036-2019 of 20 de mayo de 2019, among others). In this regard, the Sala Constitucional has stated that the use of land within protected wilderness areas is limited to what is “provided by law and its regulations; and its uses are basically intended for research, training, and ecotourism activities previously approved by the Ministerio del Ambiente y Energía, not by the municipality (see cited Article 18 of the Ley Forestal).” (Vote no. 19776-2014 at 10 hours 30 minutes on 3 de diciembre de 2014).It has also stated that, in this respect, the management plan “is important as a tool for safeguarding the natural resources of a protected wilderness area, as well as for directing the research, protection, training, and ecotourism activities that may be carried out on State-owned property.” (Vote no. 2752-2014 at 9 hours 15 minutes on 28 de febrero de 2014. To the same effect, see Votes nos. 2020-2009 at 8 hours 30 minutes on 13 de febrero de 2009, 15070-2011 at 10 hours 41 minutes on 4 de noviembre de 2011, 12716-2012 at 16 hours 01 minute on 12 de setiembre de 2012, among others). Under Article 3° of the Regulations to the Ley de Biodiversidad, the management plan is “the planning instrument that makes it possible to guide the management of a protected wilderness area toward achieving its long-term conservation objectives. It is based on medium-term strategic courses of action and management objectives for the natural and cultural elements within the area, as well as on the relationship of the latter to their socio-environmental surroundings.It serves as the basis for developing other planning and regulatory instruments for Protected Wilderness Areas.” It follows, therefore, that the management plan is the instrument through which the Sistema Nacional de Áreas de Conservación, as administrator of protected wilderness areas, performs its planning and zoning (zonificación) functions for those areas; that is, organizing the territory according to its biophysical characteristics and determining the uses and activities permitted or prohibited within the protected wilderness area and the specific sectors in which the various permitted activities may be conducted. Pursuant to Article 18 of the Ley Forestal, Article 11 of its Regulations (Executive Decree no. 25721 of 17 de octubre de 1996) establishes that only training, ecotourism, and research activities may be conducted within the State’s natural heritage and that those activities are subject to the provisions of the Protected Wilderness Area’s management plan.It also provides that, in protected wilderness areas other than national parks and biological reserves, private parties may be authorized to conduct ecotourism activities solely in the areas designated for that purpose by SINAC, and that SINAC may authorize the permitted activities by granting use permits (permisos de uso) and charging the applicable fee (canon). Under that same provision, the ecotourism activities that may be authorized are trails or rustic roads, camping areas, scenic overlooks, canopy tours, suspension bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, fishing, and lodges. Consistent with those limitations, Article 82 of the Ley de Conservación de la Vida Silvestre provides that natural-resource development and exploitation projects may not be carried out in State wildlife refuges; this is reiterated in Article 70 of the Regulations to the Ley de Biodiversidad (Decree no. 34433 of 11 de marzo de 2008), which provides that only training, research, and ecotourism activities may be conducted in those refuges.As for the activities that may be conducted in national parks and biological reserves, Article 58 of the Ley de Biodiversidad establishes that the applicable prohibitions are those set forth in the Ley de Creación del Servicio de Parques Nacionales (no. 6084 of 24 de agosto de 1977). In Articles 8, 10, and 12, that law provides that any type of commercial, agricultural, or industrial activity is prohibited in those areas; that fishing is limited to artisanal and sport fishing when it is shown not to cause ecological disruption; and that no concessions of any kind may be granted for the exploitation of products, nor may permission be granted to establish facilities other than those of the Servicio de Parques Nacionales. Also relevant is Article 3° of the Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América (approved by Law no. 3763 of 19 de octubre de 1966), which provides that the resources existing in national parks may not be exploited for commercial purposes.Based on these latter provisions, National Parks and Biological Reserves have been deemed protected wilderness areas subject to absolute conservation. (Sala Constitucional, Vote no. 16975-2008 at 14 hours 53 minutes on 12 de noviembre de 2008. See also our opinions nos. C-228-1998 of 3 de noviembre de 1998, C-297-2004 of 19 de octubre de 2004, OJ-236-2003 17 de noviembre de 2003, OJ-093-2004 of 19 de julio de 2004, OJ-069-2008 of 12 de agosto de 2008, and OJ-027-2018 of 28 de febrero de 2018). It is therefore understandable that Article 11 of the Regulations to the Ley Forestal excludes national parks and biological reserves from the possibility of authorizing, through use permits, the ecotourism activities listed therein, such as trails or rustic roads, camping areas, scenic overlooks, canopy tours, suspension bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, fishing, and lodges.That said, pursuant to Article 39 of the Ley de Biodiversidad, in protected wilderness areas, including national parks and biological reserves, the Consejo Nacional de Áreas de Conservación is empowered to approve contracts or concessions for nonessential services and activities, such as parking, restroom facilities, management of physical facilities, food services, shops, trail construction and management, visitor management, and others defined by the Consejo Regional del Área de Conservación concerned.

Those concessions may not include the exercise of responsibilities inherent to MINAE, such as defining and monitoring the strategies, plans, and budgets of the Conservation Areas, or authorizing private buildings. That article expressly provides that such “concessions and contracts may be granted solely and exclusively to community development associations, cooperatives, microenterprises registered with the Ministerio de Economía, Industria y Comercio (MEIC), or national nonprofit social organizations whose objectives include supporting the conservation of natural resources, that incorporate environmental management into the processes and the concession area, and whose legal status remains valid, provided that they are composed of and directly controlled by residents of the communities located within the area of influence of the respective protected wildlife area (área silvestre protegida).” Article 40 establishes that the concessions and contracts authorized under Article 39 must be based on the strategies and plans approved initially by the Regional Council and definitively by the National Council of Conservation Areas, in accordance with established laws and policies, and that the formulation of strategies and plans for protected areas may under no circumstances be influenced by considerations that are not strictly technical.

According to Article 57 of the Reglamento a la Ley de Biodiversidad, the award of contracts for nonessential services must comply with Article 39 of the Ley de Biodiversidad and, for the definition of other nonessential services not mentioned by law, the Regional Council of Conservation Areas may request an opinion from the Scientific and Technical Committee of the corresponding Conservation Area. Article 58 of that Reglamento then establishes that, for the granting of concessions for nonessential services in protected wildlife areas, the General Management Plan (Plan General de Manejo) for the protected wildlife area shall be the technical instrument used as the basis, although other supplementary planning instruments may be considered. It further provides that protected wildlife areas lacking a planning instrument must conduct the technical studies supporting the granting of the concession.

It may be noted that the mechanism of concessions for nonessential services differs from the use permit (permiso de uso) contemplated in Article 11 of the Reglamento a la Ley Forestal to authorize the training, research, and ecotourism activities provided for in Article 18 of the Ley Forestal. The former is intended to provide services that complement the public purpose of conserving and sustainably using the biodiversity contained within state-owned protected wildlife areas. In other words, these are services that the Sistema Nacional de Áreas de Conservación could provide directly to serve visitors to protected wildlife areas, or that it could concession to a private party for delivery. A use permit, by contrast, is intended to authorize private parties to make exclusive use of the State’s natural heritage (patrimonio natural del Estado) for research, training, ecotourism, and access to potable water; these are not activities or services complementary to the public service of biodiversity conservation and sustainable use but, rather, privately initiated activities that may be authorized within the State’s natural heritage.[1] Furthermore, pursuant to Article 39 of the Ley de Biodiversidad, concessions for nonessential services may be granted exclusively to community development associations, cooperatives, microenterprises registered with the Ministerio de Economía, Industria y Comercio, or national nonprofit social organizations whose objectives include supporting the conservation of natural resources, that incorporate environmental management into the processes and the concession area, and whose legal status remains valid, provided that they are composed of and directly controlled by residents of the communities located within the area of influence of the respective protected wildlife area; no such limitations exist for the granting of use permits.

In principle, all protected wildlife areas must be administered and used in accordance with the foregoing provisions. Although those regulations and restrictions on use are established in statutory and regulatory provisions, it must be borne in mind that, as to protected wildlife areas, “from the time of their designation, the intent is to confer upon these geographic areas the conservation and protective purposes necessary for them to fulfill their function.” (Sala Constitucional, votes nos. 21258-2010 of 14 hours on 22 de diciembre de 2010, 16938-2011 of 14 hours 37 minutes on 7 de diciembre de 2011, and 2752-2014 of 9 hours 15 minutes on 28 de febrero de 2014). Accordingly, protected wildlife areas are framed “within a planning context intended to preserve the natural resource.” (Sala Constitucional, vote no. 16938-2011, cited above). Consequently, amending the rules governing a protected wildlife area to establish conditions of use and regulations for its administration that differ from the regime generally applicable to such protected areas could entail a reduction in the area’s level of protection and, consequently, a violation of constitutional principles.

In this regard, the Sala Constitucional has stated: “Environmental public-domain status (demanialidad ambiental) entails a special protection regime: A declaration of public-domain status on environmental grounds entails a special sphere of protection insofar as it establishes a special ownership regime governed by stringent rules of public law that seek to ensure fulfillment of the purpose of safeguarding the right to a healthy and ecologically balanced environment. In light of those underlying grounds and the benefits inherent in its teleological dimension, any determination to remove such status wholly or partially, or to restructure its legal nature, requires and mandates the appropriate technical analyses weighing the environmental variable in the decision-making process, as derived from the principles of non-regression, environmental progressivity, precaution, prevention, and pro-nature protection.

The special constitutional protection afforded to the environment requires an exhaustive examination of the reasons supporting such determinations, within the context of the various levels comprising ecosystems, as well as the relationships between the environment and the anthropological setting and, within that setting, the social and economic impacts, among others. Thus, the absence of that degree of technical rigor when altering the nature of the environmental public domain disregards and violates, even merely by creating risk, the substantive content of that right. The same must be noted regarding the permissibility of carrying out human activities within those territorial spaces without duly weighing the impact that such activities may have on the environment; this requires consideration of the property’s primary use regime, the types of ecosystems converging in that area, and the existence or absence of special use regimes imposed by legal rules.

Indeed, changing the use of property that has traditionally been subject to an environmental protection regime requires technical assessments of the consequences that such new human incursions may have on the ecosystem, as well as whether they are compatible with the environment within a context of environmental sustainability. (Voto no. 22606-2022 at 13 hours 10 minutes on 28 de setiembre de 2022). Such technical assessments are unknown with respect to the change made concerning Isla San Lucas. II. Regarding Refugio de Vida Silvestre Isla San Lucas. As concerns Isla San Lucas, the starting point must be the Ley de Traspaso de la Isla San Lucas a la Municipalidad de Puntarenas (no. 5469 of 25 de abril de 1974), which ordered that transfer so that the Municipalidad would administer the island and develop a tourism center there, either itself or through public bidding. To that end, it authorized the Municipalidad to contract for the necessary infrastructure works, to engage in all activities inherent to a well-organized tourism operation, and entrusted the Instituto Costarricense de Turismo with technically studying the island’s territory and preparing the tourism-development plan, which would be binding upon the Municipalidad.

The legislature maintained that special regime when enacting the Ley sobre la Zona Marítimo Terrestre (no. 6043 of 2 de marzo de 1977), since Article 78 provided that “Isla San Lucas shall retain its current legal status under the administration of the Municipalidad de Puntarenas.” While those provisions remained in force, the Poder Ejecutivo, through Decreto no. 29277 of 11 de enero de 2001, designated Isla San Lucas and the surrounding marine area to a depth of six meters as a Wildlife Refuge (Refugio de Vida Silvestre), providing that it would be administered by the Ministerio de Ambiente y Energía and managed in accordance with the provisions established for that purpose by the legislation then in force. Subsequently, through Decreto Ejecutivo no. 30714-C of 26 de septiembre de 2002, the island was declared and incorporated into the Patrimonio Histórico Arquitectónico de Costa Rica, with the declaration providing that the property could not be demolished or remodeled in whole or in part without prior authorization from the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura.

Regarding the validity of Decreto 29777, which created the protected wildlife area on the island despite the existence of law no. 5469, the Sala Constitucional stated: “A superficial analysis of the matter might lead one to believe that Decreto 29277-MINAE seeks to repeal the provisions of the cited laws. Nevertheless, it must be recalled that the authority to establish conservation areas is conferred upon the Poder Ejecutivo by various statutory provisions (cf. preceding paragraph), in direct implementation of the rule contained in Article 50 of the Constitución Política. Thus, when the Poder Ejecutivo issues a declaration of this kind, it does so pursuant to express statutory authorization and in compliance with its constitutional duties toward the environment; therefore, it is not the Decreto that creates the legal regime governing protected areas, but rather the Decreto is merely the means that enables the prompt and effective protection of the environment by leaving the assessment of the environmental grounds supporting the designation of an area of this nature to the competent technical bodies.

Accordingly, the challenged Decreto is not unconstitutional on the ground that it purports to amend the cited statutory provisions, because provisions of the same and higher rank authorize the Poder Ejecutivo to act as it did in defense of the integrity of the environment. (…) … the action taken by the Poder Ejecutivo in the present case falls within the scope of its authority, insofar as it enables compliance with the duty imposed upon it by Article 50 of the Constitución Política, as well as with the extensive body of rules developed under International Law concerning the State’s unavoidable obligation to protect the environment by adopting all suitable measures necessary to provide comprehensive and effective protection.

Thus, although municipalities have undeniable duties in this field, it is evident that environmental protection transcends merely local interests and constitutes a matter of national interest. Accordingly, actions by the central government, as the delegate of the sovereign Nation for the fulfillment of its collective purposes, are not only valid but even indispensable insofar as they promote the effective protection of its natural assets. A decree such as the challenged decree, by determining—based on technical criteria not subject to dispute in these proceedings—that Isla San Lucas and Estero de Puntarenas are areas of environmental interest requiring a special legal regime, could never infringe upon municipal autonomy, as recognized in Articles 169 and 170 of the Political Constitution. The legislature itself intended to reserve those powers to the Executive Branch because they concern the interests of the national community.

Thus, Law number 7152 of five June nineteen ninety created the Ministerio de Recursos Naturales, Energía y Minas, designating it as the governing authority for the environmental sector and, because of its technical expertise, entrusting it with the task of “Issuing, by executive decree, mandatory rules and regulations concerning the rational use and protection of natural resources, energy, and mines” (Article 2, subsection ch). The authority of the Ministerio de Ambiente y Energía (successor to the powers of the Ministerio de Recursos Naturales, Energía y Minas) to administer national refuges and wetlands (humedales) also derives from Articles 82 and 84 of the Ley de la Conservación Silvestre, Article 32 of the Ley Orgánica del Ambiente, Article 13 of the Ley Forestal, and Article 58 of the Ley de Biodiversidad. In conclusion, this Chamber finds no violation of the autonomy of the Municipalidad de Puntarenas in the challenged acts, because the matters they regulate are of interest to the entire community and not only to the inhabitants of the central canton of Puntarenas.” (Voto no. 8928-2004 de las 16 horas 37 minutos de 18 de agosto de 2004.

Boldface added). It is worth noting that, on that occasion, priority was given to the public and national interest in conserving the island’s existing natural resources over the Municipalidad’s local interest in managing it. Subsequently, Decreto Ejecutivo no. 34282 de 25 de enero de 2008 was issued; it reduced the Refuge’s land area by 5.5% and increased its area by 210 hectares (containing portions of water and islets), declared the island’s sustainable tourism development to be of national interest and high priority, and established a Permanent Commission composed of the Ministers governing Culture, Youth and Sports, Tourism, and Environment and Energy, or their representatives, and the Mayor of Puntarenas or the Mayor’s representative, charged with ensuring the rational management of the lands excluded from the Refuge and under municipal administration. That Decree likewise provided that, for the development of tourism activities in the area under municipal administration and the preservation of the island’s cultural heritage, ICT would prepare a Sustainable Tourism Development Master Plan, which would include an environmental impact analysis (análisis del impacto ambiental) and the technical standards needed to achieve the objectives of economic, social, and environmental development, as well as the protection of the cultural heritage of that specific area.

In response to three constitutional challenges filed against that Decree, the Chamber reaffirmed the validity of the creation of the Wildlife Refuge (Refugio de Vida Silvestre) and therefore declared it unconstitutional only insofar as it reduced the Refuge’s land area, while maintaining the prescribed addition of marine area. In that regard, it held: “The common denominator of the three consolidated constitutional challenges is the alleged violation of Article 50 of the Constitution through failure to comply with Article 38 of the Ley Orgánica del Ambiente. To declare it unconstitutional, it is sufficient to establish that the mandate set forth in the latter provision was breached by changing the size of the protected wilderness area (área silvestre protegida). Article 38 provides: ‘The surface area of protected wilderness areas, which form part of the State’s natural heritage, regardless of their management category, may be reduced only by a Law of the Republic, after completion of the technical studies supporting that measure.’ The Executive Branch therefore may not reduce these areas without following the legislative and technical procedure.

For this reason, the Chamber partially grants the action and annuls Article 1 solely insofar as it excludes from the protected area of the Refugio Nacional de Vida Silvestre Isla San Lucas ‘5.5% of the current area for the protection of cultural heritage,’ due to the violation of Articles 11, 50, and 89 of the Constitution, but not insofar as it adds the marine sector and islets, since the Executive Branch is permitted to order that addition by Executive Decree.” (Voto no. 13099-2010 de las 14 horas 56 minutos de 4 de agosto de 2010). In that same ruling, the Chamber recognized the validity of the designation as architectural historical heritage (patrimonio histórico arquitectónico), because international rules establish that natural and cultural heritage may be protected simultaneously and that measures may be adopted to enhance the value (puesta en valor) of that cultural heritage. Consequently, it acknowledged that several public actors participate in the management of the island and must act in accordance with the principles of unity and coordination.

It further stated that the potential tourism development contemplated by the Decree must have a very low environmental impact, while respecting the protection of the environment and of the cultural assets existing in the area that give rise to the two protective regimes converging there. In that regard, it stated: “…both rights, concerning the natural environment and the urban environment, must be balanced when Cultural Heritage is present, since these are also constitutional values that cannot lawfully be excluded from the rights of access and enjoyment held by all individuals, nationals and foreigners alike, which is known as enhancing its value. The Chamber maintains, however, that the notion that the aspiration to human development can be achieved only in an urban environment must be dispelled. Faced with this situation, the Chamber would encounter a dilemma: although Decreto Ejecutivo 34282-TUR-MINAE-C contains provisions that clearly conflict with Article 50 of the Political Constitution, as declared in this judgment, other provisions are indeed grounded in national and international legislation and cannot be eliminated because they are supported precisely by rules of higher legal rank, in addition to being consistent with their status as a fundamental right (see Considerando XX of judgment 2003-03656).

In such cases, based on the fundamental right to a healthy and ecologically balanced environment, the protection of National and Cultural Heritage must not be sacrificed. (…) The State is a unit of powers that must be subdivided according to degrees of specialization in order to accomplish the duties and purposes assigned to it by the legal system. If public bodies and entities must fulfill constitutional purposes (Articles 50 and 89) according to their degree of functional specialization, their coordination must be a priority in resolving problems arising in the exercise of their respective powers: the Ministerio de Ambiente, Energía y Telecomunicaciones with respect to its stewardship of natural heritage; the Ministerio de Juventud, Cultura y Deportes with respect to policies for conserving historical heritage; the Instituto Costarricense de Turismo with respect to making historical sites and sites of natural beauty accessible for tourism and conserving them; and the Municipalidad de Puntarenas with respect to safeguarding the local interests of its community.

(…) The principle of State unity is especially important in gray areas of public law, insofar as the only solution consistent with Constitutional Law is to resort to the principles of cooperation and coordination among State bodies and entities, each according to its degree of autonomy and subject-matter expertise. In this respect, the effectiveness of State action requires recognition that the principle of unity must entail the primacy of certain bodies for purposes of coordinating State activities. In this regard, the Chamber recognizes that the Executive Decree brought together the various governing bodies in their respective fields of specialization so that they could oversee low-impact tourism development on the Island. The fact remains that the Chamber only partially grants the action due to noncompliance with Article 38 of the Ley Orgánica del Ambiente, because not all applicable formal legal requirements and technical studies were fulfilled.

In all other respects, however, it is evident from Articles 50 and 89 of the Political Constitution that, just as protection of the natural environment is required, developing the country’s architectural historical heritage assets (in order to provide public access to and enjoyment of them) is an equally constitutional objective, and both objectives must prevail without either undermining the other. (…) A form of rural tourism with a low ecological impact that complies with environmental regulations is consistent with Constitutional Law, which encompasses the international obligations extensively developed in the Chamber’s precedents (to which this Chamber refers), and with Article 89 of the Political Constitution, which establishes cultural objectives including protecting natural beauty and conserving and developing historical heritage, whose value is enhanced by making it accessible to the public.

Accordingly, no incompatibility has been demonstrated between environmental protection and the conservation of cultural assets made available to humanity, on the one hand, and a project that must be developed in full integration with the environment and must encompass all its components without excluding any of them, on the other... Thus, even though the powers conferred by the Ley Orgánica del Ambiente authorize the establishment by Executive Decree of management categories regulated as Protected Wilderness Areas, another designation of the same nature has been made through the heritage designation provided for in the Ley de Patrimonio Histórico Arquitectónico de Costa Rica, by means of the corresponding Executive Decrees. The involvement of the Municipalidad de Puntarenas is apparent within the scope of Law No. 5469, which effectuated the transfer of Isla San Lucas to the Municipalidad de Puntarenas in 1974 and was ratified in the Ley sobre la Zona Marítimo Terrestre, Law No. 6043 of 2 March 1977.

Specifically, Article 78 of this Law provides: ‘Isla de San Lucas shall retain its current legal status under the administration of the Municipalidad de Puntarenas.’ Article 82 of that same statute provides: ‘This law is a matter of public policy, repeals … as well as all other laws contrary to it, except Law No. 4071 of 22 January 1968 and its amendments and Law No. 5469 of 25 April 1974…’ Moreover, this legislation remains in force and has not been expressly amended or repealed by subsequent legislation. It therefore remains effective provided that it does not violate the principles governing environmental and architectural historical heritage protection or contravene the policies of the governing bodies, a matter that must be resolved by all the bodies and entities involved. In addition, Isla San Lucas is intended to be used as a tourism center that provides financial benefits to various social-welfare institutions.

Infrastructure development must be compatible with the principles of environmental sustainability, protection, and conservation; otherwise, projects undertaken without regard for the protection regimes in force on the Island, such as the construction of large-scale infrastructure, would be constitutionally questionable, since the continued application of the protected-area regime would entail a substantial land-use change (cambio de uso del suelo), unlike the human-made structures that existed long before the Island was declared a Protected Wildlife Area (Área Silvestre Protegida) and historical-architectural heritage site. Accordingly, the Chamber does not find that Articles 2, 3, 4, 6, and 7 of Decreto Ejecutivo 34282-TUR-MINAET-C contain constitutional defects, subject, however, to the following qualifications. The declaration in Article 2 that sustainable tourism development is a matter of national interest and high priority must be understood as constitutional provided that the preservation and restoration of the former prison buildings and those constructed in connection with its operation remain confined to work involving the preservation, protection, and improvement of their surroundings.

The same must apply to the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies to which they must be subjected. As for infrastructure intended for tourist use, it must be strictly limited to the areas of the historical complex, the road leading to Playa Cocos, and Playa Cocos itself. The facilities to be built must be strictly necessary to meet the basic needs of visitors and tourism-development operators; this does not mean that development may extend to projects incompatible with a “green” philosophy or inconsistent with the site’s carrying capacity, all of which must be ensured sustainably in accordance with science and technology. This Court recognizes that preserving and restoring the Island’s buildings and enhancing their value poses a genuine challenge, including—for example—the wooden houses located in the place known as “Las Jachas” and its surroundings, the Enfermería, the Capilla, the Edificio de Administración, and other infrastructure necessary to provide limited nature-tourism and ecotourism services, provided that sustainability criteria are met; otherwise, this would create a conflict of constitutional significance with Articles 50 and 89.

Subparagraphs (a) and (b) of Article 5 must be understood as constitutional insofar as the Master Plan (Plan Maestro) complies with the requirements stated by this Chamber, particularly to the extent that the zoning studies (estudios de zonificación) and zoning regulations (reglamentos de zonificación) are not based on reducing the Protected Wildlife Area by 5.5% of its area.” In other words, although the Chamber recognized the validity of the Wildlife Refuge (Refugio de Vida Silvestre) and, for that reason, declared the Decree unconstitutional insofar as it reduced part of the Refuge’s land area, it determined that the Municipalidad de Puntarenas, Instituto Costarricense de Turismo, Ministerio de Cultura, and Sistema Nacional de Áreas de Conservación must coordinate their respective powers, and it recognized the possibility of carrying out tourism activities with a very low environmental impact, consistent with the Island’s protection regimes.

It should be noted that this decision continues to emphasize the importance of protecting the Island’s natural resources in conjunction with protecting its historical-architectural heritage; therefore, the type of tourism development that the Sala Constitucional recognized as valid on the Island is associated with ecotourism activities having a very low environmental impact and consistent with the purposes of conserving that heritage. For that reason, it stated that any facilities constructed must be strictly necessary to meet the basic needs of visitors and tourism-development operators, without this implying that development may extend to projects incompatible with a green philosophy. Consequently, it may be stated that the activities and facilities approved by the Sala Constitucional are the same ecotourism activities already contemplated under the general regime governing Protected Wildlife Areas.

III. Analysis of the constitutional challenge (acción de inconstitucionalidad). In light of all the foregoing, and returning to our position regarding this constitutional challenge, we consider that Ley 9892 violates the principles of progressivity and non-regression in environmental matters (principios de progresividad y no regresión en materia ambiental), evidence-based environmental protection (objetivación de la tutela ambiental), and reasonableness, for two fundamental reasons: 1. Ley 9892 entails a reduction in the level of environmental safeguards or environmental protection afforded to Isla San Lucas, without a technical basis. 2. For one specific case, the challenged Law modifies the regime applicable to national parks without any technical basis. 1. Ley 9892 entails a reduction in the level of environmental protection afforded to Isla San Lucas, without a technical basis. Although Ley 9892 creates Parque Nacional Isla San Lucas, which in theory would represent an increase in the management category (categoría de manejo) assigned to the Protected Wildlife Area, the substance of the statute shows that the Island’s level of protection is not actually being improved but, on the contrary, is being reduced.

The reduction in the level of safeguards resulting from the Law occurs primarily because it modifies the Protected Wildlife Area regime and because of the types of activities it permits. It should be noted that the entire Law is permeated and guided by the declaration in Article 2 that the Island’s sustainable tourism development is a matter of national interest and high priority. In addition, Article 1 provides that, besides being a Protected Wildlife Area, the Island shall be a historical-architectural heritage site and a sustainable tourism-use zone (zona de aprovechamiento turístico sostenible) within the specific areas designated by law. In other words, it provides that an area of the Island will be a tourism-use zone and that this zone, as defined in Articles 3 and 6, is an area subject to differentiated management (espacio de manejo diferenciado), as the Law itself expressly provides in Article 3.

Put differently, a specific area of the Island, which the Law calls the tourism zone (zona turística), is being excluded from the Protected Wildlife Area regime. For this area subject to differentiated management, Article 7 provides that concessions (concesiones) and permits (permisos) may be granted for activities and facilities other than park services. Moreover, a governance and planning model is established for the entire Island that differs from the model applicable to Protected Wildlife Areas. This is because the entire Island ceases to be administered by SINAC and will instead be managed by a Board of Directors (Junta Directiva) composed of representatives of the Ministerio de Ambiente, Instituto Costarricense de Turismo, Poder Ejecutivo, the Mayor of the Municipalidad de Puntarenas, and Cámara de Turismo de Puntarenas (Articles 8 and 10); pursuant to Article 9, that Board shall be responsible for: “a) Defining strategies and policies aimed at the consolidation and development of the park. b) Contributing to the environmental protection and conservation of the national park. c) Establishing guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services intended for visitors’ rest and recreation, enabling and ensuring access to land and maritime routes and port structures, and, generally, providing all basic services. d) Defining environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that promote tourism and visits to the Island. e) Approving the strategic marketing and promotional objectives necessary to publicize Parque Nacional Isla San Lucas, both domestically and abroad. f) Approving authorizations, use permits (permisos de uso), and concessions for carrying out works and providing services in the Zona turística.

Works relating to areas declared to be heritage sites must be coordinated with the Ministerio de Cultura. g) Approving the Parque Nacional’s master plan, as well as the corresponding programs, plans, and budgets. h) Approving the administrative structure required for the institutional management of the park. i) Approving, renewing, amending, or revoking any trust (fideicomiso) relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and persons. It shall set admission prices for the Parque Nacional and approve contracts for the various reservation and purchasing systems. j) Approving the use of public-works concessions involving public services (concesión de obra pública con servicio público) and mutually beneficial contracting (contratación de mutuo beneficio) with nonprofit entities. k) Carrying out any other action necessary to ensure the proper operation of Parque Nacional Isla San Lucas and the achievement of its purposes.” Although Article 9 provides that SINAC’s technical opinion shall prevail with respect to wildlife protection and the conservation of the Island’s biodiversity, the fact remains that this specialized agency is excluded from the management and planning of the Protected Wildlife Area.

It should be noted that even the Island’s planning is to be governed by a master plan (Article 7), rather than a management plan (plan de manejo), which must be approved by the Board of Directors. In other words, the zoning of the Protected Wildlife Area and the determination of the activities that may be carried out will be established in that instrument, which differs from a management plan and therefore will not have to be issued in accordance with the procedures and technical requirements established for preparing management plans for Protected Wildlife Areas. It should be recalled that training, research, and ecotourism activities that may be conducted in Protected Wildlife Areas are subject to the provisions of the management plan. Likewise, contracts for nonessential services (contratos de servicios no esenciales) that may be granted in Protected Wildlife Areas are subject to that planning instrument and even to the technical opinion of the Consejo Regional de} Conservación Ambiental.

In this case, the authority to define the activities and concessions that may be granted on the Island rests with a different body, and those activities and concessions are governed by the Island’s tourism-development master plan. Apart from the foregoing, the statutory framework provided by the Law regarding the types of activities that may be authorized is extremely broad; consequently, the master plan could permit the development of activities and infrastructure beyond what is allowed under the general regime governing Protected Wildlife Areas, and even beyond the guidelines issued by the Sala Constitucional in decision no. 13099-2010, which stated that only tourism activities having a very low environmental impact and consistent with the Island’s protection regimes were permissible, and that any facilities constructed must be strictly necessary to meet the basic needs of visitors and tourism-development operators.

Furthermore, the reduction in the level of environmental safeguards afforded to the Island, without technical criteria, is also reflected in the reduction of the Protected Wildlife Area’s marine area.

There is extensive case law (jurisprudencia) from the Sala Constitucional concerning the requirement for technical criteria (criterios técnicos) justifying a reduction in the size of a protected wilderness area (área silvestre protegida), and, in this case, it has not been possible to determine the technical justification for reducing the marine protected area surrounding isla San Lucas. The only reason given in this regard is that the entire area encompassed by the wildlife refuge (refugio de vida silvestre) could not be declared a national park (parque nacional) because the Decreto Ejecutivo that established it also included the estero de Puntarenas within that refuge and, consequently, it was not feasible to include that space within the national park designation (declaratoria). However, it should be emphasized that Decreto Ejecutivo no. 29277 de 11 de enero de 2001, which created the Refugio de Vida Silvestre Isla San Lucas, did not declare the estero de Puntarenas to be part of it.

Article 3 instead declared that estuary to be the “Humedal del Estero de Puntarenas y Manglares Asociados,” that is, a separate protected wilderness area with a different management category (categoría de manejo). In any event, even if it is interpreted that the marine portion not included in the park remains a wildlife refuge, there is no technical basis for dividing (fraccionar) the island and the adjacent marine waters into two separate protected wilderness areas or demonstrating that such division does not adversely affect the protection of the island. In that regard, it must be borne in mind that the marine area that would remain a wildlife refuge would be managed by SINAC under the corresponding management plan (plan de manejo) and the general rules governing protected wilderness areas, whereas the remaining marine area and the island territory forming part of the national park would be administered by the Junta Directiva, governed by the tourism development master plan (plan maestro de desarrollo turístico), and subject to the provisions of Ley 9892. 2.

Ley 9892 modifies, for a specific individual case, the legal regime (régimen) applicable to national parks without the support of a technical opinion (criterio técnico). The regime being established for Parque Nacional Isla San Lucas is different from and incompatible with the general regime governing national parks. As stated above, pursuant to Article 58 of the Ley de Biodiversidad and the Ley de Creación del Servicio de Parques Nacionales, national parks and biological reserves (reservas biológicas) prohibit all commercial, agricultural, or industrial activities; no concessions (concesiones) of any kind may be granted for the exploitation of products, nor may permits (permisos) be granted for the establishment of facilities other than those of the Servicio de Parques Nacionales. Article 3 of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America provides that the resources existing within national parks may not be exploited for commercial purposes.

On the basis of those provisions, it has repeatedly been held that national parks and protected wilderness areas are absolute conservation areas (áreas de conservación absoluta). Accordingly, the granting to private parties of use permits (permisos de uso) for ecotourism activities has been restricted pursuant to Article 18 of the Reglamento a la Ley Forestal. What may be provided in national parks are non-essential services (servicios no esenciales) that complement the public purpose of absolute conservation; such services may be provided directly by SINAC or granted under concession in accordance with Article 39 of the Ley de Biodiversidad. Under no circumstances may concessions for such non-essential services entail the construction of private buildings or facilities other than those of the Servicio de Parques Nacionales. Ley 9892 contains provisions that are openly contrary to this national-park protection regime: “ARTICLE 7—Scope and restrictions.

Parque Nacional Isla San Lucas shall be governed by a master plan (plan maestro) prepared on the basis of technical criteria. To fulfill the purposes established in this law, concessions and permits may be granted in the tourism zone (zona turística) for activities and facilities other than those of the park service. Lodging and gambling services shall not be permitted in this zone. In all cases, the participation of local organizations in the granting of concessions shall be promoted.” ARTICLE 9—Duties and powers. The Junta Directiva of Parque Nacional Isla San Lucas shall have the following powers: (…) d) Define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that promote tourism and visits to the island. (…) f) Approve authorizations (autorizaciones), use permits, and concessions for carrying out works and providing services in the Tourism Zone.

(…) j) Approve the use of public-works concessions involving public services (concesión de obra pública con servicio público) and mutually beneficial contracting (contratación de mutuo beneficio) with nonprofit entities.” ARTICLE 14—Comisión Administradora del Fideicomiso and its functions. The Comisión Administradora del Fideicomiso shall appoint from among its members a president, a vice president, and a secretary. All members of this commission shall serve ad honorem. The functions of this commission shall include the following: (…) g) Approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to maximize the use of the Tourism Zone and visitors’ enjoyment thereof.” Consequently, the Procuraduría considers that this modification for a specific case, which lacks technical justification, violates the principles of non-regression in environmental matters (no regresión en materia ambiental), the objectification of environmental protection (objetivación de la tutela ambiental), and reasonableness (razonabilidad), and is therefore contrary to Article 50 of the Constitución Política and the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America.”

1. 176The statutory requirements have been complied with in the proceedings.

Justice Castillo Víquez writes the opinion; and,

Whereas:

I. ADMISSIBILITY AND PRELIMINARY MATTERS

A constitutional challenge (acción de inconstitucionalidad) is a proceeding subject to certain formalities, which must be observed for the Chamber to validly hear the merits of the challenge. Specifically, section 75 of the Ley de la Jurisdicción Constitucional governs the requirements for admissibility of a constitutional challenge. First, it requires a prior matter pending resolution, whether in judicial or administrative proceedings (in the procedure for exhausting administrative remedies), in which the unconstitutionality has been invoked as a reasonable means of protecting the right or interest alleged to have been infringed. By way of exception, the second and third paragraphs provide for circumstances in which no prior matter is required, such as the absence of individual and direct harm due to the nature of the matter, the defense of diffuse or collective interests (intereses difusos o colectivos), or when the challenge is filed directly by the comptroller general of the Republic, the attorney general of the Republic, the chief public prosecutor of the Republic, or the ombudsman for the Inhabitants.

Now then, in the case at hand, the petitioning party bases its standing (legitimación) on the defense of diffuse interests, because, in its opinion, Law no. 9892 infringes the right to a healthy and ecologically balanced environment, protected under Article 50 of the Constitution.

In this regard, in repeated decisions this Court has recognized the existence of a genuine diffuse interest in claims concerning environmental harm—for example, see judgments nos. 2010013099 of 14:56 hours on August 4, 2010, 2013012973 of 16:20 hours on September 25, 2013, and 2022001622 of 13:00 hours on January 19, 2022. In the case under examination, that line of precedent is reaffirmed and, consequently, the petitioning party’s standing is upheld on the basis of the second paragraph of section 75 cited above.

Having clarified the foregoing, by a submission added to the digital case file on March 24, 2023, José Francisco Coto Meza, in his capacity as general litigation counsel for the Instituto Costarricense de Turismo, requests that the Cámara de Turismo de Puntarenas be asked to address the arguments presented by the petitioners. In this regard, this Court does not consider it appropriate to grant that request, because the executive president of the Instituto Costarricense de Turismo has already been designated to provide information in the matter before the Court.

II. INTERVENTIONS IN SUPPORT (COADYUVANCIAS)

Article 83 of the Ley de la Jurisdicción Constitucional provides that, within 15 days following the first publication of the notice contemplated in the second paragraph of section 81, the parties to matters pending as of the date the challenge was filed, or persons having a legitimate interest, may enter an appearance to support the arguments that may justify granting or denying the challenge, or to expand upon the grounds of unconstitutionality relating to its subject matter.

In the case at hand, by an order issued at 17:00 hours on May 28, 2021, the Presidency of the Chamber admitted Jorge Serendero Hülssner as a supporting intervenor (coadyuvante activo), in his capacity as general attorney-in-fact without limitation as to amount for the For The Oceans foundation, because he entered an appearance within the period indicated above; however, it rejected the remaining interventions filed in the proceeding because the applicants failed to comply with this Court’s prior directions.

Finally, having reviewed the submissions added to the digital case file on November 14, 2022, and January 27, 2023, and in response to the request submitted by Susana Rojas Berrocal, identity card 110850879, the intervention filed in her name by means of an email received by the Chamber on April 27, 2021, and added to the digital case file on May 4, 2021, is hereby vacated.

III. SUBJECT MATTER OF THE CHALLENGE

The petitioners challenge Law no. 9892 in its entirety, entitled “Ley de Creación del Parque Nacional Isla San Lucas,” and, in particular, sections 1, 2, 3, final paragraph, 5, 6, 7, 9(d), 10, 14(g), 15, 16, 17, and 18, principally on the grounds that: a) the management category (categoría de manejo) of the protected wildlife area (área silvestre protegida) of Isla San Lucas was changed and a tourist zone was included without prior studies; b) the area of the protected wildlife area was reduced without any justification; c) commercial purposes disguised as sustainable objectives were established; d) the Sistema Nacional de Áreas de Conservación is not represented on the Board of Directors of Parque Nacional Isla San Lucas; e) the presence of private security officers is permitted within a national park; f) the granting of concessions and the construction of docks and moorings within the national park are authorized; and g) the financing of the protected wildlife area thus created is uncertain.

In their view, those provisions violate Articles 7, 50, and 89 of the Political Constitution, the right to a healthy environment, and the principles of reasonableness, irreducibility of protected wildlife areas (irreductibilidad de las áreas silvestres protegidas), proportionality, non-regression, objectification, precaution (principio precautorio), and progressivity; as well as Advisory Opinion no. OC-23-17 of the Inter-American Court of Human Rights, Article 1.1.A of the Convention on the Conservation of Wetlands of International Importance and Sites for Migratory Birds, section 11 of the Additional Protocol on Human Rights in the Area of Economic, Social and Cultural Rights, “Protocol of San Salvador,” section 8(d) and (e) of the Convention on Biological Diversity, Article 26 of the American Convention on Human Rights, and Articles I and III of the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.

IV. CHALLENGED LEGISLATION

Law no. 9892 of August 24, 2020, entitled “Ley de Creación del Parque Nacional Isla San Lucas,” whose constitutionality is challenged, provides as follows:

“CHAPTER I GENERAL PROVISIONS ARTICLE 1—Creation. Parque Nacional Isla San Lucas is hereby created. In addition to its status as a protected wildlife area, it shall constitute historical and architectural heritage and a sustainable tourism-use zone within the specific areas established by this law.

ARTICLE 2—National interest. The sustainable tourism development of the island under the terms of this law, as well as the conservation and restoration of the buildings of the former Isla San Lucas prison, are hereby declared to be matters of national interest and high priority. Within their respective legal frameworks, agencies of the Public Administration and the private sector may contribute financial resources, to the extent of their means and without prejudice to the fulfillment of their own objectives, to assist with the island’s sustainable tourism development.

ARTICLE 3—Boundaries. Parque Nacional Isla San Lucas shall comprise a land portion and a coastal marine area.

The land portion shall consist of the insular portion of Isla San Lucas, located in the Golfo de Nicoya, on the Instituto Geográfico Nacional map sheet entitled Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an area of four hundred sixty-two hectares (462 ha).

The coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m). Within the two foregoing areas, there shall be a differentiated-management area (espacio de manejo diferenciado) devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourist Zone.

ARTICLE 4—Purposes. The purposes of Parque Nacional Isla San Lucas are as follows:

• a)The preservation of natural, historical, cultural, archaeological, and architectural heritage.
• b)To contribute to the socioeconomic development of the Golfo de Nicoya.
• c)To promote sustainable and inclusive tourism for domestic and foreign visitors.
• d)Enjoyment, recreation, and the provision of facilities and amenities for inclusive tourist visitation.

ARTICLE 5—Cultural and historical significance. The group of buildings comprising the former San Lucas prison is hereby declared historical and architectural heritage; the State shall restore and preserve this heritage for the enjoyment and education of present and future generations.

The Ministerio de Cultura shall prepare an inventory of the aforementioned heritage and its state of conservation, update it periodically, and report all such information to MINAE and to the entity responsible for administering the island.

ARTICLE 6—Tourist Zone. The areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and land access zone to the island, the parcels (predios), trails, and designated beach areas, shall be subject to designation as the Tourist Zone. Those areas are specified by the following coordinates:

• a)Area called the Historical Zone: the site where the buildings of the former San Lucas prison are located, with coordinates in the CRTM05 projection:

Historical Zone Point East North 1A 400981.03 1100093.66 2A 401261.56 1100135.03 3A 401306.62 1100202.99 4A 401457.60 1100173.85 5A 401475.57 1100140.83 6A 401541.55 1100120.77 7A 401568.40 1100120.73 8A 401536.47 1100052.42 9A 401477.02 1099857.81 10A 401462.89 1099787.67 11A 401466.18 1099719.98 12A 401477.60 1099672.13 13A 401386.15 1099679.91 14A 401332.15 1099682.96 15A 401230.16 1099698.05 16A 401179.17 1099704.10 17A 401098.21 1099752.17 18A 401030.19 1099727.23 19A 401000.17 1099710.26 20A 400959.14 1099681.30 21A 400936.12 1099650.32 22A 400901.15 1099684.35 23A 400876.20 1099744.37 24A 400833.25 1099793.41 25ª 400810.54 1099839.72 From point 25A, the boundary continues northward along the coastline until reaching point 1A Area of the polygon called “Building Area”: 265664.59 1 m2, equivalent to 26ha5664, equivalent to 0.27km2 b) El Coco Beach Recreation Area: bounded by the following coordinates in the CRTM05 projection:

El Coco Beach Recreation Area Point East North 1B 401643.06 1099629.69 2B 401641.02 1099562.66 3B 401565.31 1099564.97 4B 401529.72 1099575.47 5B 401509.31 1099592.93 6B 401495.15 1099616.41 7B 401477.60 1099672.13 8B 401466.18 1099719.98 9B 401462.89 1099787.67 10B 401477.02 1099857.81 11B 401536.47 1100052.42 12B 401568.40 1100120.73 13B 401577.04 1100161.48 14B 401607.21 1100242.40 15B 401643.53 1100323.34 16B 401663.94 1100357.67 17B 401724.22 1100325.70 From point 17B, the boundary continues southward along the 4.00-meter depth contour (sic) in the sea until reaching point 1B Area of the polygon called “El Coco Beach Recreation Area”: 76401.99, equivalent to 7ha6401, equivalent to 0.08km2 c) Sector called the Trail Area: bounded by the following coordinates in the CRTM05 projection Trail Area Point East North 1C 400810.54 1099839.72 2C 400833.25 1099793.41 3C 400876.20 1099744.37 4C 400901.15 1099684.35 5C 400936.12 1099650.32 6C 400867.31 1099551.65 7C 400814.73 1099469.28 se 400776.42 1099415.41 9C 400743.31 1099416.06 10C 400729.68 1099455.63 11C 400677.1O 1099476.38 12C 400606.39 1099489.92 13C 400509.34 1099530.02 14C 400403.28 1099555.80 15C 400327.93 1099561.12 16C 400295.41 1099560.90 17C 400263.08 1099573.89 18C 400229.28 1099573.89 19C 400134.22 1099551.60 20C 400076.18 1099569.08 21C 400026.55 1099562.81 22C 400000.45 1099542.53 23C 399992.36 1099521.17 1099503.01 24C 399986.52 25C 399976.78 1099485.49 26C 399936.53 1099470.58 27C 399894.34 1099467.98 28C 399801.13 1099439.46 29C 399757.79 1099410.59 30C 399685.05 1099347.02 31C 399660.39 1099316.53 32C 399636.37 1099294.48 33C 399622.09 1099284.75 34C 399597.42 1099277.61 35C 399577.95 1099280.21 36C 399559.12 1099298.37 37C 399542.89 1099311.34 38C 399512.38 1099317.83 39C 399483.17 1099319.13 40C 399471.49 1099326.91 41C 399447.47 1099338.59 42C 399424.10 1099343.77 43C 44C 399403.33 399374.83 1099343.13 1099341.56 45C 399374.86 1099318.47 46C 399370.17 1099251.36 47C 399341.18 1099175.13 48C 399286.84 1099093.34 49C 399216.70 1099084.41 From point 49C, the boundary continues northward along the coastline until reaching point 50C.

50C 399304.38 1099473.03 51C 399343.31 1099505.35

Trail Area (sic)

Point East North 52C 399444.50 1099480.56 53C 399535.37 1099485.66 54C 399628.29 1099515.25 55C 399716.10 1099551.97 56C 57C 399755.92 1099607.07 399794.18 1099656.91 58C 399822.33 1099699.55 From point 58C, the boundary continues northward along the coastline until reaching point 1C.

Area of the polygon designated “Trail Area”: 314277.731 m2, equivalent to 31 ha4277, equivalent to 0.31 km2 d) Area designated Water Sector: encompassed by the following coordinates in the CRTM05 projection Water Sector Point East North 1D 2D 399731.59 399833.40 1099755.72 1099974.32 3D 400081.26 1099819.1O 4D 400462.40 1099962.75 5D 400396.44 1100013.81 6D 399981.48 1100066.19 7D 399808.55 1100136.35 8D 399958.59 1100186.21 9D 400081.63 1100223.10 10D 400059.82 1100439.12 11D 400039.92 1100550.14 12D 400074.93 1100556.11 13D 400140.22 1100535.42 From this point 13D, the boundary continues on an east-south-west bearing along the coastline until reaching point 1D Area of the polygon designated “Water Sector” 746209.m2, equivalent to 74ha6209, equivalent to 0.75 km2

CHAPTER II

ADMINISTRATION

ARTICLE 7—Scope and restrictions. Parque Nacional Isla San Lucas shall be governed by a master plan prepared on the basis of technical criteria.

To fulfill the purposes established in this law, concessions (concesiones) and permits (permisos) may be granted in the Tourist Zone for activities and facilities other than park services. Lodging and gambling services shall not be permitted in this zone.

In all cases, the participation of local organizations in the granting of concessions shall be promoted.

Any conflict of jurisdiction (conflicto de competencias) shall be resolved by the Minister of Ambiente y Energía.

ARTICLE 8—Governance of the island. For the governance and administration of Parque Nacional Isla San Lucas, the Junta Directiva del Parque Nacional Isla San Lucas is hereby created as a maximally decentralized body (órgano de desconcentración máxima) attached to the Ministerio de Ambiente y Energía (Minae), with instrumental legal personality (personalidad jurídica instrumental) for the exercise of its powers.

ARTICLE 9—Duties and powers. The Junta Directiva del Parque Nacional Isla San Lucas shall have the following powers:

• a)Define strategies and policies aimed at the consolidation and development of the park.
• b)Contribute to the environmental protection and conservation of the national park.
• c)Establish guidelines for the protection, restoration, and management of historic buildings; develop facilities and services for visitors’ rest and recreation; enable and ensure access to land and maritime routes and port structures; and, in general, provide all basic services.
• d)Define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island.
• e)Approve the strategic marketing and promotional objectives needed to publicize Parque Nacional Isla San Lucas both within and outside the country.
• f)Approve authorizations (autorizaciones), use permits (permisos de uso), and concessions for carrying out works and providing services in the Tourist Zone.

In the case of works related to areas declared cultural heritage (patrimonio), coordination shall take place with the Ministerio de Cultura.

• g)Approve the master plan for the National Park, as well as the corresponding programs, plans, and budgets.
• h)Approve the administrative structure required for the institutional management of the park.
• i)Approve, renew, amend, or revoke any trust (fideicomiso) relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and individuals. It shall determine admission prices for the national park and approve contracts for the various reservation and purchasing systems.
• j)Approve the use of public-works concessions with public services (concesión de obra pública con servicio público) and mutually beneficial contracting (contratación de mutuo beneficio) with nonprofit entities.
• k)Carry out any other action necessary to ensure the proper operation of Parque Nacional Isla San Lucas and the attainment of its purposes.

Regarding the conservation and preservation of historical and architectural heritage, the position of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail; regarding the protection of wildlife and conservation of the island’s biodiversity, the technical position of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail. At the request of the Junta Directiva, these entities shall provide their opinions as expeditiously as possible.

ARTICLE 10—Composition. The Junta Directiva del Parque Nacional Isla San Lucas shall consist of the following members:

• a)The Minister of Ambiente y Energía, who shall chair it, and for whom a vice minister from that ministry may serve as alternate.
• b)The Minister of Cultura, for whom a vice minister from that ministry may serve as alternate.
• c)The Executive President of the Instituto Costarricense de Turismo (ICT), for whom the person holding the position of manager or a member of the Junta Directiva of that institute may serve as alternate.
• d)One representative of the Executive Branch appointed by the Consejo de Gobierno, which shall also appoint an alternate.
• e)The Mayor of the Municipalidad del cantón Central de Puntarenas, for whom a deputy mayor may serve as alternate.
• f)The President of the Cámara de Turismo de Puntarenas, for whom a member of the Junta Directiva of that chamber may serve as alternate.

The chair of the Junta shall hold its authority to represent the body in judicial and extrajudicial matters (representación judicial y extrajudicial). The chair shall also have a casting vote (voto de calidad) under the terms of Article 49 of Ley 6227, Ley General de la Administración Pública, dated 2 de mayo de 1978. The members of the Junta Directiva shall receive no attendance fees (dietas).

ARTICLE 11—Tenure and organization. The six members of the Junta Directiva del Parque Nacional Isla San Lucas shall remain in their positions for as long as they hold the offices entitling them to membership and, in the case of the representative of the Executive Branch, for as long as that representative is not removed by the Consejo de Gobierno.

The Junta Directiva of the park may validly hold meetings with alternate members participating, even when the principal member’s position is vacant.

On matters not governed by this law, the structure, organization, and operation of the Junta Directiva shall be governed by Ley 6227, Ley General de la Administración Pública, dated 2 de mayo de 1978.

ARTICLE 12—Meetings. The Junta Directiva shall hold regular meetings at least once a month and special meetings whenever required, in which case the Chair shall issue the notice convening the meeting.

All meetings of the Junta Directiva shall be formally documented.

The Junta Directiva may invite technical staff and other persons needed for its decision-making to attend its meetings.

ARTICLE 13—Trusts. The Junta Directiva del Parque Nacional is hereby authorized to use a trust as an instrument for the administration, management, development, and maintenance of Parque Nacional Isla San Lucas in fulfillment of the purposes set forth in this law. This instrument shall be established with a State-owned commercial bank and shall directly perform the duties and exercise the powers assigned to it by the Junta.

The trust structure shall include an Administrative Committee (Comisión Administradora) and an Oversight Office (Fiscalía), whose members shall be appointed by the Junta. Said committee shall be deemed a Special Committee (Comité Especial), in accordance with Article 116 of Ley 1644, Ley Orgánica del Sistema Bancario Nacional, dated 26 de setiembre de 1953. It shall be an interdisciplinary collegiate body (cuerpo colegiado) composed of five persons of recognized integrity, with expertise in one or more of the following fields: administration, infrastructure development, tourism, the environment, cultural heritage, marketing, or other fields relevant to the purposes of this law.

The Junta Directiva is also authorized to administer, through said trust, funds received by the park from any source.

The State-owned commercial bank that will act as trustee (fiduciario) shall be selected through a rigorous assessment of its profile based on parameters of security, liquidity, diversification, profitability, trust-management experience, and risk control.

The Contraloría General de la República shall have unrestricted access to all trust information and documentation whenever it deems appropriate.

ARTICLE 14—Administrative Committee of the Trust and its functions. The Administrative Committee of the Trust shall appoint from among its members a chair, a vice-chair, and a secretary. All members of this committee shall serve ad honorem.

The functions of this committee shall include the following:

• a)Perform all duties or tasks assigned by the settlor (fideicomitente) and established in the trust agreement.
• b)Coordinate with the Junta Directiva del Parque Nacional Isla San Lucas and follow its general guidelines to ensure the proper operation and fulfillment of the trust.
• c)Approve the manuals relating to administration, management, oversight, and other matters concerning the trust.
• d)Review and approve the trust’s regular and supplementary budgets annually.
• e)Instruct the trustee regarding the actions required within the scope of the trust’s operations.
• f)Meet in regular session at least once a month and in special session whenever convened by the Chair of the Junta or the trustee’s representative.
• g)Approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and nonessential services, to ensure the fullest use of the Tourist Zone and the enjoyment of visitors.
• h)Perform the functions assigned to it by the trust agreement regarding internal control, oversight, procurement, personnel, and other matters necessary for the administration of the national park.
• i)Perform any other function arising from the trust agreement, its manuals, or other directly related instruments.

ARTICLE 15—Surveillance and security. The Parque Nacional Isla San Lucas shall have the necessary complement of park rangers (guardaparques) from the Sistema Nacional de Áreas de Conservación of the Ministerio de Ambiente y Energía (MINAE) for its surveillance and security, without prejudice to the possibility that the Board of Directors (Junta Directiva), either directly or through the corresponding administrative trust (fideicomiso de administración), may contract for such security as it deems necessary; such personnel shall have no police authority and may not perform nondelegable functions inherent to the administration. It may also request assistance from the Ministerio de Seguridad in situations warranting such assistance.

CHAPTER III

DEVELOPMENT AND FINANCING

ARTICLE 16—Infrastructure development. The Parque Nacional Isla San Lucas may develop all infrastructure necessary to facilitate sustainable tourism (turismo sostenible), including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, moorings, food services and access routes, and information and communication in various formats, as well as any infrastructure it deems appropriate for the benefit of visitors and to ensure the enjoyment and appreciation of the park’s historical, architectural, and natural wealth.

For the construction of docks, moorings, and other maritime facilities, the Instituto Costarricense de Puertos del Pacífico (lncop), the Ministerio de Obras Públicas y Transportes (MOPT), and the Instituto Costarricense de Turismo (ICT) shall provide the corresponding technical support to the Board of Directors; these institutions are likewise authorized to construct and maintain the works specified in this provision.

ARTICLE 17—Financing. The Parque Nacional Isla San Lucas shall have financial resources enabling it to discharge its mandates promptly and efficiently. These shall include the resources allocated to it by law through the Sistema Nacional de Áreas de Conservación (SINAC), transfers from the budgets of the Republic, or donations from any natural or legal person (persona física o jurídica), as well as the funds it generates from admission to the park, use of its services, fees (cánones) for concessions and permits, and, in general, payment for activities conducted within the park.

The resources governed by this law, as well as all resources generated by the park, shall necessarily and exclusively be invested in the national park itself.

Oversight shall be the responsibility of the Contraloría General de la República.

ARTICLE 18—Authorization to donate and provide subsidies. The entire state, non-state, and financial public sector is authorized to make donations and investments and to include budgetary subsidies for the benefit of the Parque Nacional Isla San Lucas.

The Instituto Costarricense de Turismo (ICT) may transfer financial resources to the Board of Directors of the Parque Nacional Isla San Lucas for investments in development and ordinary activities; it may also design and carry out promotional and marketing activities to encourage visitation to the park.

The Board of Directors may receive donations from international organizations and foreign governments interested in assisting with the park’s purposes.

ARTICLE 19—Authorization for credit and loans. To fulfill its objectives, the Board may obtain credit and/or loans from public or private, domestic or foreign entities, always subject to the controls and provisions of Ley 8131, Ley de Administración Financiera de la República y Presupuestos Públicos, of 18 de setiembre de 2001.

ARTICLE 20—Repeal. Articles 2 through 8 of Ley 5469, Ley de Traspaso de la Isla San Lucas a Municipalidad de Puntarenas, of 25 de abril de 1974, are hereby repealed.

TRANSITORY PROVISION I—The Board of Directors of the Parque Nacional Isla San Lucas shall be constituted within no more than two months from the entry into force of this law.

TRANSITORY PROVISION II—Until the trust referred to in this law has been established, or during any periods in which it ceases to be effective, the Board of Directors shall perform all corresponding duties pursuant to the powers granted to it by this and other laws.

The period for commencing the procedures aimed at contracting the trust shall not exceed ninety calendar days from the entry into force of this law.

TRANSITORY PROVISION III—Within a maximum period of six months from the entry into force of this law, the institutions and organizations comprising the Board of Directors of the Parque Nacional Isla San Lucas, as well as the Ministerio de Economía, Industria y Comercio (MEIC), shall develop a strategy to promote the participation of local organizations in the tourism activities conducted in the park.

This law shall enter into force upon its publication.

Issued at the Presidencia de la República, San José, on the twenty-fourth day of August of the year two thousand twenty.

LET IT BE IMPLEMENTED AND PUBLISHED.”

V. SUSTAINABLE DEVELOPMENT AND TOURISM

In judgment No. 2010-13099, when previously addressing the regulatory status of this island with respect to Decree No. 34282-TUR-MINAE-C, this Court ruled on the implications of sustainable development (desarrollo sustentable) in conjunction with tourism. On that occasion, it stated that the cornerstone of development is environmental sustainability (sustentabilidad ambiental), whose objective is to protect and conserve the environment and its natural resources while maintaining a balance with economic diversification and improvement of the quality of human life. It emphasized that the central idea underlying the principles of environmental law (principios de derecho ambiental) lies in the rational use of natural resources, together with environmental protection, to ensure sustainability for present and future generations. Accordingly, every economic or productive activity that affects or uses the environment must adhere to the philosophy of sustainable development (desarrollo sostenible), commensurate with its environmental impact (impacto ambiental).

In this regard, because the Executive Branch relied on such objectives for economic and social development, this Chamber held that rural tourism (turismo rural), as such, must uphold those values protecting sustainable development, because it could not constitute an exception, and controlling the effects it may have on the environment is constitutionally significant. One example is the Certificación para la Sostenibilidad Turística issued by the Instituto Costarricense de Turismo, an extremely important component demonstrating progress in protecting the right to a healthy and ecologically balanced environment (derecho al ambiente sano y ecológicamente equilibrado) while also promoting economic diversity; this measure creates incentives for enterprises engaged in the tourism-related use of natural and cultural resources. It was further noted that Law No. 8724, which is the Ley de Fomento del Turismo Rural Comunitario, seeks to benefit families and communities by using their localities as tourist destinations, and that its provisions include Article 2(a), which states: “Make optimal use of environmental resources, which are a fundamental element of tourism development, maintaining essential ecological processes and helping to conserve natural resources and biological diversity.” In this regard, it mentioned that the Código Ético Mundial para el Turismo, adopted by Resolution A/RES/406(XIII) of the thirteenth General Assembly of the OMT in Santiago de Chile, from 27 de diciembre to 1 de octubre de 1999, and adopted by the United Nations General Assembly in Resolution A/RES/56/212 of 21 de diciembre de 2001, provides:

“Article 3.

Tourism, a factor in sustainable development 1. All stakeholders in tourism development have a duty to safeguard the environment and natural resources with a view to sound, continuous, and sustainable economic growth capable of equitably satisfying the needs and aspirations of present and future generations.

2. National, regional, and local public authorities shall favor and encourage all forms of tourism development that conserve scarce and valuable natural resources, particularly water and energy, and avoid waste generation to the greatest extent possible.

…

4. Tourism infrastructure shall be designed and tourism activities planned so as to protect the natural heritage comprising ecosystems and biological diversity and to preserve endangered species of wild fauna and flora. Stakeholders in tourism development, particularly industry professionals, must accept the imposition of limitations on their activities when those activities are conducted in particularly vulnerable areas: deserts, polar or high-mountain regions, coastal areas, tropical forests, or wetlands suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and valuable forms of tourism, provided that they respect natural heritage and the local population and comply with the carrying capacity (capacidad de ocupación) of tourist sites.” Accordingly, this Chamber stated that, to ensure equitable access to development, the traditional idea that development occurs only in urban areas must be abandoned, since other factors that make a place unique can be utilized in rural areas, while of course endeavoring not to threaten those conditions. It cautioned that there is no doubt that the utilization of natural resources entails economic diversification; accordingly, the environment requires protection so that it can withstand the burdens of human intervention. It is therefore necessary to ensure reasonable development in balance with the environment, such that the degree of oversight that may be exercised would increase according to the impact that development may have upon it.

Consequently, tourism development must not entail the destruction of public-domain property or the surrounding environment, because it in fact depends upon their preservation to achieve the economic improvement of rural communities within the parameters of sustainability. The constitutional purposes of the State also include developing policies that reduce social and economic disparities, while tailoring its actions to the protection of environments, whether natural, rural, or mixed, pursuant to Article 50 of the Constitution. Access to development in terms of employment opportunities and quality of life amounts to economic progress that forms part of the recognition and advancement of human rights. Hence, rural development through tourism must not require individuals to abandon their customs and traditional ways of life in order to migrate to cities, but rather to adapt them to current needs and advances.

In this regard, it was stated that, in the Chamber’s view, the true challenge facing humankind is to generate progress and—why not—happiness, both material and spiritual, without threatening the resources available in the environment; the contrary would simply result in social inequalities that prevent progress toward a new stage of human development. The Chamber acknowledged that the balance between the two is very delicate, but for it to be achieved without degrading the environment, recourse must be had to science and technology to determine the burdens that certain natural environments and their resources can withstand without violating the rights of present and future generations. For all these reasons, the conflict between environmental protection and other rights derived from it, which are widely recognized in international human-rights instruments, warrants these considerations by this Constitutional Court.

Thus, this Chamber concluded that rural development based on tourism oriented toward natural and cultural heritage is constitutionally legitimate provided that it is sustainable. Hence, if science and technology suggest imposing certain limits on the numbers or sizes of visitor groups, during particular seasons, and so forth, such limits could not be deemed unconstitutional, because they are based on sustainability criteria, although due regard must also be given to the various international provisions safeguarding the right to the enhancement (puesta en valor) of assets belonging to national history, not only as national heritage assets but also as the heritage of all humankind; restricting access to them by the public is not legitimate.

Regarding the protection of the surrounding environment and natural and cultural heritage, that same judgment stated the following:

“X.- On the protection of the surrounding environment and landscapes of the natural and cultural heritage.- This Constitutional Court has derived environmental rights and principles from Articles 7, 48, 50, and 89 of the Constitution and from the aforementioned international treaties, while also recognizing the State’s need to contribute through policies that promote economic diversification as well as the conservation and protection of cultural and natural assets, because without both, equitable human progress for all social sectors could not be said to exist. Environmental protection, economic diversification, and quality of life are legitimate objectives of the State when implementing urban and rural development policies. However, the type of progress pursued in a rural environment must depart from a centralized development model that assumes development can occur only in urban areas, when it should instead utilize the distinctive features of rural areas and address their other specific needs.

Rural development based on tourism must, however, rest upon other specific pillars. One of these is what legal scholarship identifies as the conservation of the values inherent in rural areas. This principle is based on the requirement that rural areas be conserved sustainably. In this regard, forests, the sea, mountains, volcanoes, mangroves, wetlands, and so forth provide as many different types of development settings as there may be interests. Each constitutes, in itself, an asset of scenic value subject to constitutional protection. However, the work of targeting and promoting these types of rural development policies falls within the constitutional functions of the Legislature and the Executive Branch. This Chamber must emphasize that preserving the distinctive characteristics of rural environments or natural or scenic surroundings is a value embodied in Article 89 of the Constitution that requires protection.

Such protection must extend to the surroundings that enhance its value, not only as a rural area but also as a tourist destination, so that neighboring communities may experience the positive effects. In this regard, Article 35 of the Ley Orgánica del Ambiente provides that:

“The creation, conservation, administration, development, and oversight of protected areas shall have the following objectives:

a…

…

• f)To protect the natural and scenic surroundings of historic and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.” The Political Constitution identifies as objectives of legal significance not only the protection, but also the conservation and development, of the Nation’s historical and artistic heritage. In the dictionary of the Real Academia Española, the verb ‘to protect’ has the following meanings: 1.- To shelter, assist, or defend; and 2.- To safeguard a person, animal, or thing from harm or danger by placing something over it, surrounding it, and so forth. The verb ‘to conserve,’ in turn, means: 1. To maintain something or ensure its continued existence; 2. To keep someone alive and unharmed; 3. To continue practicing customs, virtues, and similar things; 4.

To keep something carefully, among other meanings. And ‘to develop,’ in the applicable sense, means to expand or increase something of a physical, intellectual, or moral nature. Consistent with the foregoing, the Law authorizes as legitimate objectives the creation, conservation, administration, development, and oversight of protected areas containing historic, architectural, or archaeological sites or centers. This means that, in the management of cultural resources, human intervention is permitted for the maintenance, safeguarding, preservation, and care of the assets located within their surroundings, while development also promotes the recovery and enhancement of sites of interest that may exist at the location and in its vicinity. Assets of cultural interest require protection and conservation measures within the environment in which they are located, so that they may be distinguished as tourism resources; otherwise, the State’s failure to act would constitute unlawful abandonment from a constitutional standpoint and under the international treaties in force in the Republic.

In addition, conservation entails the idea of ensuring protection and permanence within the context of the values and customs characteristic of urban and rural areas; sustainability criteria and practices must therefore be accepted. The administration and development of the asset must be protected, and the asset must also be enhanced in accordance with the characteristics of its environment. Accordingly, if it consists of human-made infrastructure, it will require technical management, including maintenance and investment measures, to ensure both its development when it is enhanced and its conservation. In the case of Isla San Lucas, subsection f) of section 38 of the Ley Orgánica del Ambiente applies insofar as the island contains not only elements of natural heritage but also, as a site containing historic and archaeological buildings, elements that are important to national culture and identity. Consequently, it is important to cite the Código Ético Mundial para el Turismo, which provides:

"Article 4 Tourism, a factor in the use and enrichment of the cultural heritage of humankind Tourism resources belong to the common heritage of humankind. The communities within whose territories they are located have particular rights and obligations with respect to them.

Tourism policies and activities shall be conducted with respect for the artistic, archaeological, and cultural heritage, which they must protect and transmit to future generations. Particular attention shall be given to the protection and rehabilitation of monuments, shrines, and museums, as well as places of historical or archaeological interest, which must be broadly open to tourists. Public access to privately owned cultural assets and monuments shall be encouraged with full respect for the rights of their owners, as shall access to religious buildings without prejudice to the requirements of worship.

Resources generated by visits to sites and monuments of cultural interest should preferably be allocated, at least in part, to the maintenance, protection, improvement, and enrichment of that heritage.

Tourism activity shall be organized in a manner that allows traditional cultural and artisanal production, as well as folklore, to survive and flourish, and that does not lead to their standardization and impoverishment. (emphasis in bold not in the original).

Costa Rican legislation provides only limited regulation of the possible administration of these historic sites, but the scattered provisions establish the protection of natural and scenic surroundings. Such protection permits human intervention, but for the purpose of improving the sites, not destroying or abandoning them. The Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, Ley No. 7555 provides that:

“Article 9. Obligations and Rights The designation of real property as a monument, building, or historic site imposes upon the owners, possessors, or holders of rights in rem (derechos reales) over the property so designated the following obligations:

To properly conserve, preserve, and maintain the property.

...

• j)[…] The State and the respective municipality shall have the right to expropriate the property; they may exercise that right for the benefit of other public entities. This right extends to property that threatens environmental harmony or poses a risk to the conservation of property that has been declared of historical-architectural interest.

The Executive Branch and the respective municipality shall be required to prevent the total or partial demolition of a protected building. They shall ensure that the use of protected property does not impair its conservation and is also consistent with the property’s distinctive characteristics. In all cases, such use must not conflict with morality, public decency, or public order.” (emphasis in bold not in the original) The Chamber also considers it important to note that Articles 71 and 72 of the Ley Orgánica del Ambiente clearly define the foregoing:

“Article 71.- Visual pollution (contaminación visual). Actions, works, or installations that exceed the maximum limits permitted by established technical standards or standards issued in the future, to the temporary or permanent detriment of the landscape, shall be considered visual pollution.

Article 72.- Landscape conservation (conservación del paisaje). The competent authority shall encourage the public and private sectors to participate in landscape conservation.

When carrying out a project requires affecting it, the resulting landscape shall be of at least the same quality as the previous one.” From the foregoing, one may discern not only the purposes of conservation, preservation, and development, but also the principle of sustainability in the use and development of artistic, archaeological, and cultural heritage assets, in order to enrich their surroundings by improving their scenic beauty and to provide access and safety for property and persons, as advised by the technical and scientific standards in the respective fields. Furthermore, ultimately connected with the need for rehabilitation, restoration, maintenance, and oversight of activities are the social and economic benefits to the many sectors that will depend on this activity.”

VI. REGARDING THE PROTECTED STATUS OF ISLA SAN LUCAS, ITS AREA, USES, AND TECHNICAL STUDIES

• a)Prior status of Isla San Lucas, as documented in legislative expediente nro. 21.287, which gave rise to law nro. 9892.

During the pre-Hispanic period, this island was occupied by Indigenous people. It was conquered in 1529 and, at that time, was known as isla Chara. The Spanish named it isla San Lúcar and later isla San Lucas. In 1873, during the government of General Tomás Guardia, the Costa Rican State decided that isla San Lucas would be used as a penitentiary. It was apparently in 1930 that the group of heritage buildings now known on the island was developed; the main administrative building, which they called the comisaría, was constructed, along with the group of buildings intended for use as a prison. This underwent a significant change in 1961, when it became a penal colony, an experiment promoted by certain attorneys so that, through the Ministerio de Justicia, the State could change the conditions in which those persons were being held. At that time, a colony was established in which prisoners enjoyed a degree of freedom on the island; they lived in small houses, or could stay in small houses on weekends, where they could receive conjugal visits, while tourists shared the island with the persons who were deprived of liberty at that time.

A certain amount of commerce developed on the island, with hundreds of head of cattle and poultry; the prisoners engaged in agriculture during several months of the year and, although the land was fairly arid because of the environmental conditions at the time, they were able to grow crops and sold their produce to residents of the Golfo de Nicoya who traveled to the island. When the book “La isla de los hombres solos” was published in 1963, it raised widespread awareness of the inhumane conditions those persons were experiencing and had experienced, particularly before the agricultural penal colony, prompting significant changes.

In 1974, the legislators enacted law nro. 5469, which provided for: 1- transferring ownership of Isla de San Lucas, located in the Golfo de Nicoya, to the Municipalidad de Puntarenas; 2- requiring the Municipalidad to use the Island as a tourist center, for which purpose it was authorized to contract for the necessary infrastructure works; 3- allowing the Municipalidad to undertake such operation itself or through public bidding; 4- authorizing the operation on the Island, for the purposes of that law, of hotels and all activities characteristic of a well-organized tourism operation; 5- distributing the net proceeds generated by the tourism operation of Isla de San Lucas as follows: a) 45% to the Municipalidad del Cantón Central de Puntarenas for city modernization projects; 15% to the Instituto Costarricense de Turismo; and 10% for the development of Prison Reform; b) 10% to the Hospital Nacional de Niños; c) 5% to the Instituto Mixto de Ayuda Social; d) 5% to the Dirección de Adaptación Social, to be used for the maintenance and repair of prisons in the province of Puntarenas; e) 5% to a home serving destitute older persons throughout the province of Puntarenas; and f) 5% to an Alcohol Rehabilitation Center in Puntarenas; 6- requiring the Instituto Costarricense de Turismo to conduct a technical study of the territory of Isla de San Lucas and its coastline, prepare the corresponding Tourism Development plan together with an explanatory report establishing the applicable priorities, which the Municipalidad would be required to observe and implement; 7- rendering inapplicable, solely for the purposes of that law, any legal provision contrary thereto; and 8- providing for the issuance of regulations by the Poder Ejecutivo together with the interested Corporación Municipal and the Instituto Costarricense de Turismo.

A transitional provision stipulated that the transfer referred to in Article 1 would take place when the existing Penal located on Isla de San Lucas was relocated elsewhere, for which purpose the Poder Ejecutivo was granted two years to find a new location for that Penal, in accordance with the laws in force. This law remained in force until law nro. 9892, which is challenged in this action, was enacted.

That development of a hotel tourism project under a concession (concesión) never materialized, and it was not until 1991 that the penitentiary was closed as such and permanently ceased to operate as a prison.

By then, the island had been left in a critical state, with virtually no activity and very few people, perhaps a guard, until 2001, when executive decree nro. 29277-MINAE was signed, converting the island into a state-owned wildlife refuge (refugio de vida silvestre), pursuant to Article 82 of Ley de Conservación de la Vida Silvestre nro. 7317 of 30 de octubre de 1992 and Articles 32 and 42 of Ley Orgánica del Ambiente nro. 7554 of 4 de octubre de 1995, on the following grounds:

“1º—That, as a direct consequence of population growth, intensive agriculture, urbanization, pollution, overexploitation of marine resources, and other forms of intervention in the ecological and hydrological system, wetland ecosystems, primarily in the Golfo de Nicoya, are being lost at an accelerated rate, which could have serious medium- and long-term consequences for biodiversity, fishing activities, and the country’s economy.

2º—That Isla San Lucas, located in the Golfo de Nicoya, contains important cultural features, as well as biological resources associated with both the island area and the marine-coastal zone, which are important to protect.

3º—That the Golfo de Nicoya constitutes a natural breeding ground for many marine species used by neighboring communities.

4º—That wetlands constitute an important feeding, shelter, and breeding site for a wide variety of wildlife species and that their protection and conservation are therefore particularly important.

5º—That integrated, rational management of marine resources helps meet regional needs for research, recreation, environmental education, scenic beauty, and the rational use of renewable natural resources.” In Article 2, this same decree established the following:

“Article 2º—The marine area described below, according to the IGN map sheet entitled Golfo, Edition 3-IGNCR, is hereby declared a Marine-Coastal Protection Zone (Zona de Protección Marino-Costera), in accordance with Article 42 of Ley Orgánica del Ambiente, and is bounded as follows: Point 1.- located at punta Cirial on Isla San Lucas, at Lambert coordinates 213480 North (N) and 438650 East (1), then proceeding in a straight line to the point at coordinates 217850 N-445870 E (2), which on the ground coincides with vertex 5 of Cadastral Plan (plano Catastrado) Nº P-602653-85; it continues along the western boundary of this property until reaching vertex 23 of Cadastral Plan P-665031-2000, then proceeds along the eastern and northern boundaries of this parcel until reaching vertex 8, then continues in a generally southerly direction for approximately 38 meters and approximately 40 meters west until reaching, at vertex 1, the parcel described in Cadastral Plan P-665032-2000, and continues along that northern and western boundary until reaching Nº 3; these plans describe the property that will house the Puntarenas marine park facilities, now Property of INCOFER.

From this last point, at approximate coordinates 217750 N- 445500 E (3), it proceeds in a straight line to punta Cocos on Isla San Lucas, at Coordinates 215000 N - 438400 E(4). It continues along the low-tide line of Playa Coco until reaching the starting point of this description of the Marine Protection Zone, located at Punta Cirial at coordinates 213480 North (N) and 438650 East (1). Excluded from this description is the area between Punta Cirial and Punta Cocos on Isla San Lucas, comprising waters up to 6 meters deep that are already included as part of the Isla San Lucas Wildlife Refuge described above in Article 1 of this decree.” Article 3 declared the Estero de Puntarenas to be the Humedal del Estero de Puntarenas y Manglares Asociados, according to the IGN map sheets described therein.

And Article 4 provided: “The administration of the protected areas hereby declared shall fall within the authority of the Ministerio de Ambiente y Energía and the institutions established by the regulations in force. The management categories (categorías de manejo) established in this decree shall be governed by the applicable provisions of the legislation in force on the subject. The harvesting of marine species shall be permitted in accordance with the regulations established by the Instituto de Pesca y Acuacultura (INCOPESCA).” Meanwhile, through Decreto Ejecutivo nro. 30714 of 132 de agosto de 2002, the Poder Ejecutivo declared and incorporated into the Patrimonio Histórico Arquitectónico de Costa Rica the property known as Isla San Lucas, in the province of Puntarenas.

On 25 de febrero de 2005, decree 29277-MINAE was partially amended through executive decree 32349, repealing Article 2 cited above, and ordered the expansion and demarcation of the Humedal Estero Puntarenas y Manglares Asociados area, declaring the area comprising Isla San Lucas and the marine-coastal area to be within the Refugio Nacional de Vida Silvestre, and stating, among other things, the following:

“Article 1º-The boundaries of the state-owned Refugio Nacional de Vida Silvestre Isla San Lucas, whose area comprises the following, are hereby maintained:

A. The land portion consisting of Isla San Lucas, located in the Golfo de Nicoya, IGN Map Sheet entitled Golfo, edition 3-IGNCR, at north latitude 9° 56´ and west longitude 84° 54,5´, with an area of 4,62 km. cuadrados.

B. A marine-coastal area comprising the waters surrounding Isla San Lucas to a depth of 6 m.” Article 2º-The area of the Humedal Estero Puntarenas y Manglares Asociados declared under Decreto Ejecutivo N° 29277-MINAE is hereby expanded and demarcated; its location is shown on the Instituto Geográfico Nacional map sheets entitled Golfo, edition 3-IGNCR, and Chapernal, edition 2-IGNCR, with an area of 4362 ha, described as follows:…

Article 4—Any infrastructure work to be constructed, whether docking facilities, piers, fish collection centers, or any other facility related to fishing, tourism, or any other activity, within the existing openings or within the buffer zone (zona de amortiguamiento), corresponding to the 20 m-wide strip equidistant from the southern coastline along the Puntarenas estuary and extending from point 1 at coordinates 217 923 N - 442977 E to point 16 at coordinates 218394 N - 450365 E, shall be built on pilings or floating docks, depending on its intended purpose, size, or load capacity.

Article 5—The administration of the protected areas declared herein shall fall within the jurisdiction of the Ministerio de Ambiente y Energía and the institutions established under the regulations in force. The management categories (categorías de manejo) established in this decree shall be governed by the provisions established in this regard by the applicable legislation in force. The extraction of marine species shall be permitted pursuant to the regulations established by the Management Plan (Plan de Manejo) for these Protected Wildlife Areas (Áreas Silvestres Protegidas), their Use Regulations (Reglamento de Uso), and the Instituto Costarricense de Pesca y Acuicultura (INCOPESCA).” Subsequently, by Executive Decree No. 33327 of August 30, 2006, the boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas, State-owned property, declared pursuant to Executive Decree 29277-MINAE, published in La Gaceta No. 30 on Monday, February 12, 2001, and amended by Executive Decree 32349-MINAE, published in La Gaceta No. 92 on Friday, May 13, 2005, were corrected, demarcated, and expanded, and the following was established:

“Article 3—Any infrastructure work to be constructed, whether docking facilities, piers, fish collection centers, or any other facility related to fishing, tourism, or any other activity, within the buffer zone, corresponding to the strip between the southern boundary of the Área Silvestre Protegida Humedal Estero Puntarenas y Manglares Asociados and the coastline of the city of Puntarenas, extending from point 1 at coordinates 218500 N-443000 E to point 5 at coordinates 218390 N-450480 E, shall be built on pilings or floating docks, depending on its intended purpose, size, or load capacity. To build such infrastructure, interested parties shall request approval from the División Marítimo Portuaria del Ministerio de Obras Públicas y Transportes; once such approval has been obtained, the Municipalidad de Puntarenas shall issue the corresponding permit.

Article 4—The administration of the protected areas declared herein shall fall within the jurisdiction of the Ministerio de Ambiente y Energía and the institutions established under the regulations in force. The management categories established in this decree shall be governed by the applicable legal provisions in force. The extraction of marine species shall be permitted pursuant to the regulations established by the Management Plan for these Protected Wildlife Areas, their Use Regulations, and the Instituto Costarricense de Pesca y Acuicultura (INCOPESCA).

Article 5—This decree does not limit or modify the status of the Puntarenas estuary as a means of transportation or navigation. Free navigation through it shall be maintained, and any work deemed necessary to provide it with proper maintenance so that it does not lose its navigability shall be authorized. Any other activity to be conducted within the portion of the Estero de Puntarenas forming part of the Área Silvestre Protegida shall require the respective permit from the Oficina Subregional del SINAC-MINAE located in Esparza de Puntarenas and shall be subject to its discretion.

Article 6—Any activity or project aimed at restoring and preserving the water quality and natural resources of the Estero de Puntarenas, as well as their sustainable use (uso racional), is hereby declared to be in the public interest.” On January 25, 2008, the Poder Ejecutivo issued Decree No. 34282-TUR-MINAE-C, which provided as follows: Article 1 corrected, demarcated, and expanded the refuge area, and the remaining provisions stated:

“Article 2—The sustainable tourism development of the island under the terms of this decree, as well as the conservation and restoration of the buildings of the former prison on Isla San Lucas, are hereby declared to be matters of national interest and high priority. Agencies of the Administración Pública and the Sector Privado may, within the respective legal framework, contribute financial resources to the extent possible and without prejudice to the fulfillment of their own objectives, in order to support the sustainable tourism development of the Isla.” “Article 3—A Permanent Commission is hereby created, composed of the Ministers governing Cultura, Juventud y Deportes, Turismo, and Ambiente y Energía, or their representatives, and the Alcalde de Puntarenas or the Mayor’s representative, and shall be responsible for ensuring the sustainable management of land under municipal administration. The Commission shall have a Secretaría General de Coordinación, whose head shall be appointed by the Presidente de la República.” “Article 4—The following shall be prohibited in the Área de Administración Municipal:

• 1)The supply of fuels and their derivatives, in order to prevent environmental pollution.
• 2)The use of water for tourism activities contrary to the technical standards issued by the Departamento de Aguas del Minae, in collaboration with the Instituto Costarricense de Acueductos y Alcantarillados, if required, so as to preserve the ecological flow (caudal ecológico) necessary to maintain the island’s ecosystem.
• 3)The use of the Patrimonio Cultural contrary to the technical standards issued by the Ministerio de Cultura, Juventud y Deportes.
• 4)Fishing and hunting.
• 5)Any other restrictions established by the Permanent Commission in accordance with the relevant technical studies.” “Article 5—For the development of tourism activities in the area under municipal administration and the preservation of the island’s cultural heritage, the ICT shall prepare a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible), which shall include an environmental impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve the objectives of economic, social, and environmental development, as well as the protection of the cultural heritage of that specific area. The Sustainable Tourism Development Master Plan shall contain at least the following elements:
• a)A zoning study (estudio de zonificación) defining land uses (usos de suelo).
• b)Zoning regulations (Reglamento de zonificación) (ordinances and regulations) defining and establishing criteria and standards regarding land use, construction and use of buildings, facilities, public utilities, buffer zones, among other matters necessary for limited and sustainable tourism development and for protecting the cultural heritage of the Isla.
• c)A strategic plan for project implementation, establishing programs, projects, and activities undertaken through both private initiative and public investment for sustainable development and protection of cultural heritage.

The Sustainable Tourism Development Master Plan shall be submitted to the Secretaría Técnica Nacional Ambiental del Minae and the Ministerio de Cultura, Juventud y Deportes for approval, in accordance with the requirements and procedures established by the legal system.

The area under municipal administration shall be governed by the aforementioned Sustainable Tourism Development Master Plan, and the Refuge Management Plan shall not apply to it, except for the relevant general legal rules. MINAE shall adjust its Management Plan in accordance with the refuge’s new boundaries and the Sustainable Tourism Development Master Plan.

Article 6—Of the resources allocated to the Municipalidad de Puntarenas pursuant to Article 5 of Law No. 5469, twenty-five percent shall be earmarked by the Municipalidad de Puntarenas for maintaining the facilities and services provided by Minae at the Refugio de Vida Silvestre de la Isla de San Lucas.

Article 7—Minae shall continue using the facilities it currently occupies on Isla de San Lucas, including the offices, park-ranger dormitories, and any other building currently occupied in the performance of its duties. They may be relocated only if they are provided with other facilities in conditions equal to or better than the current ones.” That decree was challenged before this Tribunal, and by Judgment No. 2010-13099, issued at 14:56 on August 4, 2010, only Article 1 of Executive Decree No. 34282-TUR-MINAET-C of January 25, 2008, published in Supplement 10 to La Gaceta No. 28 of February 8, 2008, was annulled as unconstitutional, and only insofar as it amended subsection A of Article 1 of Executive Decree No. 33327-MINAE, except for the addition of the portion of water incorporated into the Refugio Nacional de Vida Silvestre Isla San Lucas and section B, which remain in force. In other words, the remainder of its content was in force when Law No. 9892, the subject of this action, was enacted.

Likewise, as a result of the very regulations described above, Management Plans issued by SINAC and predating the law had existed since 2012; based on technical studies, they define areas and activities to be carried out and were even updated before this law was enacted, and they are also consistent with its provisions. Consider, for example, certain relevant aspects of the assessment contained in the update to the Plan General de Manejo del Refugio Nacional de Vida Silvestre de la Isla San Lucas (June 2020) https://www.sinac.go.cr/ES/planmanejo/Plan%20Manejo%20ACOPAC/Refugio%20Nacional%20de%20Vida%20Silvestre%20Isla%20San%20Lucas%20(2020).pdf:

“…The RNVSISL possesses a wealth of fish fauna (ictiofauna) that could be used not only for fisheries but also for tourism, because in recent years recreational activities such as diving and snorkeling have increased substantially nationwide and particularly along the Pacific coast… It is believed that mangrove areas could be used by crocodiles and terrestrial turtles as feeding and refuge sites, while certain beaches with sandy substrates, such as El Coco and Hacienda Vieja, are used as nesting sites by sea turtles, including the olive ridley sea turtle (Alfaro S. com. per. 2006). Given that semi-aquatic and aquatic reptiles, such as terrestrial turtles, sea turtles, and crocodiles, are among the reptile species most sought after for commercial and tourism uses, these areas could be used to develop tourism activities that do not alter the species’ ecology or behavior…

2.3 Ecosystem services (servicios ecosistémicos) provided by the ASP The RNVSISL ecosystems provide a series of benefits to communities and to the country as a whole.

The “Millennium Ecosystem Assessment, 2005” report classifies ecosystem services into four categories:

• 1)Supporting services: These are the ecological processes necessary to produce and maintain all other services.
• 2)Provisioning services: Products obtained directly from ecosystems, such as food, timber, drinking water, among others.
• 3)Regulating services: These are benefits obtained indirectly from ecosystems as a result of their functioning, such as water purification, erosion control, climate regulation, among others.
• 4)Cultural services: Non-material benefits that people obtain from aesthetic experiences, tourism, or spiritual enrichment. They improve people’s quality of life.

The following illustration shows the main ecosystem services provided by the RNVSISL, identified for each of the four categories indicated.

2.4 SWOT Analysis The results of the SWOT analysis conducted during the first participatory workshop with key stakeholders and endorsed during the second participatory workshop are presented below.

2.4.1 Strengths - The legal framework governing the protected wildlife area (área silvestre protegida, ASP) (Decretos Ejecutivos 29277- MINAE del 12 de febrero del 2001, No.30714-C del 26 de Setiembre de 2002, No.34282-TUR-MINAEC del 25 de enero de 2008, No.13099 de agosto del 2010, Resoluciones de Sala Cuarta Voto 08928 del 18 de agosto del 2004, Voto 13099 del 4 de agosto del 2010, la Ley de Biodiversidad, entre otros), for managing the site and coordinating among institutions (MINAE, ICT, Municipalidad de Puntarenas, Ministerio de Cultura).

- The existing regulations that allow local stakeholders to provide non-essential services.

- The ASP’s planning instruments (General Management Plan, specific plans, management effectiveness assessments, among others).

- The refuge’s forest cover (cobertura boscosa) (vegetation cover, tropical dry forest, mangrove forest).

- Its tourism, environmental, and cultural appeal, with significant historical, archaeological, and geological value, scenic beauty, flora, fauna, trails, and beaches open to visitors, which have established San Lucas in the tourism market.

- The network of trails that facilitates activities related to tourism use and wildfire control within the ASP.

- The conception of the refuge as a source of development that generates socioeconomic resources for the region.

- A site of importance for sheltering users of the Golfo in the event of weather-related events.

- The management capacity already in place (although minimal, there is an institutional presence (SINAC, fire management)).

- Support is available from Pro-parques, INCOP, private tourism companies (tour operators), and local associations that assist with activities on the island.

- The refuge’s geographic location, as an accessible island situated 6 km off the coast of Puntarenas.

- The responsible-fishing marine area as a buffer zone. General Management Plan for the Refugio Nacional de Vida Silvestre Isla San Lucas.

2.4.2 Weaknesses - A lack of resources (personnel, equipment, materials, infrastructure, and basic services) to manage the ASP properly.

- The loss of infrastructure in several sections of the ruins of the former Presidio and the lack of an action plan by Patrimonio cultural that would treat the island as a circuit.

- The existence of several points offering easy access to the island, creating safety risks for visitors exposed to theft and robbery and also hindering efforts to prevent harm to, protect, and monitor its natural, cultural, historical, and archaeological resources.

- Pollution caused by unregulated visitors at unsupervised sites.

- The presence of invasive plant species at the site.

- The limited extent of the marine area belonging to the refuge.

- Limited knowledge of the refuge’s marine resources (information gaps).

- Limited knowledge of the site’s natural and archaeological resources among the various stakeholders (Municipalidad de Puntarenas, ICT, SINAC, and Ministerio de Cultura), as well as a lack of dissemination of existing information.

- The absence of physical boundary markers for the refuge’s marine area and the lack of a technical definition in the regulations (6 meters in the marine area not encompassed by the protected marine area).

- The lack of public-use regulations governing tourism activities in the refuge.

2.4.3 Opportunities - Access to marine tourism services in the Golfo de Nicoya.

- The existence of the INCOP-ICT-BN Trust.

- Cultural activities (sports, religious activities, and local traditions).

- The existence of organized groups (local stakeholders) that could participate in providing Non-Essential Services in the Refuge.

- Academic interest in conducting research on various subjects (marine and archaeological resources, flora, fauna, among others, to fill information gaps).

- The existence of key stakeholders (the public sector, NGOs, chambers, and the private sector) with whom partnerships can be established.

- The possibility of entering into agreements with different entities (Municipalidad de Puntarenas, NGOs, among others).

- The existence of organized volunteer groups willing to assist within the ASP.

- The updating of the General Management Plan, with the participation of key stakeholders.

- Demand among domestic tourists interested in learning about the ASP’s valuable historical, cultural, and natural contributions.

- The possibility of turning the site into an attraction for the cruise-ship sector arriving at Caldera and Puntarenas.

- The existence of various sources (research studies, among others) that can be used to fill information gaps.

- The interest of numerous public- and private-sector entities in using and protecting the resources of the refuge and the surrounding area.

2.4.4 Threats - Vandalism (theft and robbery).

- Illegal hunting and fishing (the presence of illegal hunters and fishers).

- Looting of archaeological sites (huaquerismo).

- Pollution from solid waste reaching the Isla and Golfo de Nicoya.

- Invasive species (teak and mamón).

- The abandonment of domestic animals (dogs and cats) on the island.

- Illegal tourism and the use by visitors of the resources found on the Isla (archaeological, cultural, and natural).

- Climate change.

- Overexploitation of marine resources.

- The existence of proposals or intentions to undertake high-impact tourism development affecting the refuge.

The results of the foregoing analysis identify the aspects on which the actions to be implemented must focus in order to bring about significant changes that positively affect the RNVSISL’s focal management elements. These actions are reflected in the targets and activities proposed for each Strategic Area. It is important to emphasize that the existing weaknesses must be prioritized, since efforts to address them will strengthen the capacity to reduce threats…

3. METHODOLOGICAL FRAMEWORK FOR THE PROCESS OF UPDATING THE PGM 3.1 Principles Considered in Updating the PGM This General Management Plan was updated in accordance with the policies and regulations governing the preparation of such plans. It also treated citizen participation as an integrating element linking protection and development, as well as a means of learning about the traditional and ancestral practices carried out within the ASP.

It also considers matters such as the ecosystem approach, with the aim of ensuring that goods and services remain available to meet needs over time.

It further took into account matters such as the objectives for which the ASP was established and the need for the proposal to encompass sustainable conservation and development practices, all focused on human well-being and, of course, on creating practices and strategies that promote the perpetuation of natural and cultural resources…

4 STRATEGIC FRAMEWORK FOR MANAGING THE ASP 4.1 Vision of the RNVSISL “A protected wildlife area that is administratively consolidated, with an appropriate structure enabling it to be managed effectively and efficiently in fulfillment of its conservation objectives; integrated at the Local and National levels; and equipped with genuine participation mechanisms that allow it to become a hub for development and thereby help improve the quality of life of residents of the associated local communities of the Golfo de Nicoya.” This will allow:

- The Refugio Nacional de Vida Silvestre to regenerate biologically.

- The historical architectural resources of the ruins of the former Penitenciario to be restored and properly maintained by the Ministerio Cultura.

- The Refuge’s tourism attractions to be developed and managed sustainably.

4.2 Mission of the RNVSISL “It is a protected wildlife area designated as historical heritage, where the cultural and natural heritage is conserved and comprehensively managed; it provides facilities for scientific research and the management and recovery of wildlife, with options for ecotourism and other activities consistent with its management category, thereby helping improve the quality of life of residents of the surrounding local communities through a participatory process involving state institutions, nongovernmental organizations, civil society, and local businesses led by SINAC-MINAE.” 4.3 Focal Management Elements Focal management elements (elementos focales de manejo, EFM) are selected through a process that identifies a small number of biodiversity resources to be prioritized in the management of the Refugio Nacional de Vida Silvestre Isla San Lucas. The focal management elements guide the Refuge’s administration in allocating and prioritizing resources.

Based on the analysis conducted during the participatory workshop, four Focal Management Elements were defined for this ASP and are described below.

4.3.1 Tropical Dry-Forest Remnant The RNVSISL contains a remnant of tropical dry forest which, together with the Zona Protectora Tivives, is effectively the last protected tract of this kind in the Pacífico Central region. It is regarded as the terrestrial environment most threatened by human intervention and one of the rarest in América Central (Janzen, 1988). This forest is characterized by two seasons: a dry season between December and April and a rainy season from May through November. Very common plant species include guanacaste (Enterolobium cyclocarpum), cenízaro (Pithecelobium saman), chaperno (Lonchocarpus minimiflorus), guacimo (Guazuma ulmifolia), jobo (Spondias mombin), pochote (Bombacopsis quinatum), and roble sabana (Tabebia rosea); several of these species produce striking blossoms during the dry season…

The threats identified for this EFM are fires caused by illegal hunting activities; the introduction of exotic species through various means; and climate change, particularly changes in rainfall throughout the year that mainly result in prolonged droughts. It is important to note that this type of forest on the Isla is entirely secondary forest (ICONVIS-UNA, 2006). The principal socioculturally and economically significant uses that may be made of this Focal Management Element are sustainable tourism, recreation, environmental education, research, and photography.

4.3.2 Marine-Coastal Resources The RNVSISL contains important marine-coastal resources characteristic of sandy beaches, rocky beaches, islets, cliffs, and mangrove forests… According to ICONVIS-UNA (2006) studies, 63 fish species were identified within the Refuge’s marine-coastal zone, with Haemulidae and Lutjanidae being the most widely represented families. Playa Hacienda Vieja, El Coco, and Tumbabote were the sites with the greatest fish-species richness and could therefore be used for recreational tourism activities such as snorkeling and as management areas for cultivating species that may be commercially harvested in the Golfo.

The most common threats to this EFM are pollution from various types of waste carried by the currents of the Golfo de Nicoya and deposited in different parts of the Refuge’s marine-coastal zone; the uncontrolled extraction of mollusks (shells and snails) and crustaceans; and destruction of the seabed through the use of unauthorized fishing gear such as anchors, traps, and gillnets.

The uses of sociocultural and economic importance that may be made of this focal management element (Elemento Focal de Manejo, EFM) are recreational and subsistence fishing, sustainable tourism, recreation, education, research, recreational diving, and photography.

4.3.3 The infrastructure of the former Presidio, declared architectural heritage Through Decreto Ejecutivo 24520-C of August 25, 1995, the ruins of the former prison were declared Cultural Heritage, giving a protected wildlife area (área silvestre protegida, ASP) unprecedented stature and renown. The architecture and graffiti of the former Penitenciaría are considered extremely important because they provide evidence of the history of how the State controlled and repressed persons deprived of liberty…

The threats to this focal management element are: Significant deterioration and/or alteration of the buildings and their structures due to insufficient management by the public institutions responsible for the National Cultural Heritage (Ministerio de Cultura, ICT, Municipalidad de Puntarenas) to restore and better maintain the infrastructure. There is no permanent restoration and maintenance plan; activities are carried out only sporadically. Crime and vandalism are committed by people who lack adequate knowledge and information about the historical and cultural legacy present in the refuge; and, finally, unregulated tourism through the various sites causes deterioration of some structures and alteration of the existing graffiti.

The uses of sociocultural and economic importance that may be made of this EFM are sustainable tourism, recreation, education, research, and photography.

4.3.4 Archaeological sites Between January 4 and 11, 2008, May 24 and June 11, 2009, the Departamento de Antropología e Historia del Museo Nacional de Costa Rica and the Universidad de Miami conducted archaeological test excavations in an area of Playa Cocos where a cemetery is located. They discovered that the small wall surrounding the excavation is very recent, as it was built over a stone path similar to the access road to the administrative building, which in turn lies above the human remains found. During the more extensive horizontal excavations in the cemetery, the first excavation, measuring 4 x 7 meters, yielded 48 buttons, one bullet, one buckle, one metal fragment, one cartridge case, and the human remains of 9 individuals. The second excavation, measuring 3 x 3 meters, experienced problems with collapses and yielded 5 buttons, one metal pendant, and the human remains of 2 individuals.

This demonstrates that the cemetery is quite old. Across the 3 excavations and at different depths, the following were found: one human molar, two foot-bone fragments, one metal screw, one rib fragment, one metal nail, one fragment of a right jaw with 4 teeth, one bottle, one human phalanx, 4 possible human phalanges, one fingertip, other small human bones, two nails, 3 plastic buttons, various human skeletal remains (vertebrae, heel, and ribs), one wooden button, two metal buttons bearing the Costa Rican coat of arms, and additional skeletal remains corresponding to one complete individual located between 170 and 200 centimeters below the surface; the skull has holes presumed to be bullet holes.

The buttons bearing the coat of arms date from the period 1848-1906 and were used on army officers’ dress uniforms… The main threat to this EFM is looting of archaeological sites (huaquerismo) by people seeking these archaeological resources for their own collections or for trafficking.

The uses of sociocultural and economic importance that may be made of this EFM are sustainable tourism, recreation, education, research, and photography…

4.4 Objectives of the RNVSISL The following general objectives have been defined for the RNVSISL. They reflect the rationale for its declaration as an ASP, as established in the Decreto Ejecutivo creating the ASP:

• a)Conserve a representative sample of the tropical dry forest ecosystem.
• b)Protect water and scenic resources.
• c)Conserve water and scenic resources.
• d)Provide opportunities for research and technical studies, environmental education, recreation, and sustainable tourism.
• e)Contribute to the socioeconomic development of residents of local communities.

The foregoing objectives were envisioned when this protected wildlife area was created. It should be noted that they are well founded; however, to better manage the ASP and ensure the perpetuity of its natural resources, they must be linked to the objectives, strategies, actions, and plans mentioned in this management plan.

4.5 General objective of the general management plan Guide the management of the RNVSISL toward fulfillment of its long-term conservation objectives, based on strategic courses of action and management objectives for the ASP’s natural and cultural resources.

4.5.1 Specific objectives a) Manage the protection of the natural and cultural resources existing in the Refugio.

• b)Foster conditions for marine-coastal and terrestrial systems to adapt to climate change.
• c)Promote awareness among visitors and local residents regarding the conservation of the marine-coastal and terrestrial biodiversity present in the Refugio and the goods and services derived from it.
• d)Offer the public educational and recreational opportunities compatible with the resources of the Refugio.
• e)Promote partnerships with stakeholders that support actions furthering the management objectives of the Refugio.

4.6 Strategic courses of action These set out the changes intended to be achieved over a 10-year planning horizon, with periodic reviews every 2 years. They are aimed at reducing threats, restoring resources, increasing capacity, improving resource sustainability, and generating information.

For the Refugio Nacional de Vida Silvestre Isla San Lucas, 8 conservation strategies were defined, each with objectives, targets, and actions intended to fulfill the purpose of this plan.

4.6 Strategic courses of action These set out the changes intended to be achieved over a 10-year planning horizon, with periodic reviews every 2 years. They are aimed at reducing threats, restoring resources, increasing capacity, improving resource sustainability, and generating information. For the Refugio Nacional de Vida Silvestre Isla San Lucas, 8 conservation strategies were defined, each with objectives, targets, and actions intended to fulfill the purpose of this plan.

…4.7.1 Minimal- or no-intervention zone (zona de mínima o nula intervención, ZMNI) The sectors of the ASP defined under this category have a minimal or nonexistent level of intervention. The objective or desired condition is to maintain an unaltered state or one subject to an almost imperceptible impact.

For this type of zone, the objectives are aimed at absolute protection; the development of very-low-impact, low-intensity, and infrequent tourism activities; research; and administrative use directed toward oversight and protection.

This zone comprises the islands of Cocineras, Aves, and Pan de Azúcar, which are located along the southern boundary of the ASP and provide refuge for several species of seabirds; the Humedal or mangrove area; the springs (nacientes) of Quebradas Hacienda Vieja, Control, Quebrada Coyol, and their protection zones; Cerro Control and Cerro Cirial; Punta Barrigona, Punta Tumba Bote, and Punta Manzanillo. (Figure 14)…

4.7.2 Low-intervention zone (zona de baja intervención, ZBI) Under this category, interventions are intended to remain at a very low level, although with greater possibilities for developing management practices and other activities. It is expected to fulfill objectives aimed at a strict level of sustainability in the management and use of certain ASP resources.

Administrative-use practices, specially regulated use of resources, and low-impact tourism may be permitted, although with slightly greater intensity and frequency than in the minimal-intervention zone.

This zone comprises the archaeological sites present in the RNVSISL; the marine area surrounding the ASP; Playa Cirialito, Playa Barrigona, Playa Bella vista, Playa Manzanillo, and Playa Pilitas; the Sendero a Punta vigilante; Punta Vigilante, Punta Cirial, Punta El Coco, and Punta Cirialito.

This area measures 401.6 ha, corresponding to 90.1% of the ASP’s total area (Figure 15).

The following are permitted in the low-intervention management zone:

- Scientific research or monitoring authorized in accordance with current regulations.

- The management of flora and fauna species for biological restoration purposes is permitted, based on scientific knowledge and aimed at fulfilling the ASP’s conservation objectives, as established in regulations and protocols previously authorized by SINAC.

- The installation of equipment and structures of scientific interest or for management of the Refugio is permitted, provided they are essential.

- Visits are permitted for educational, scientific, prevention, protection, and oversight purposes, as well as any other activity defined by the ASP administration.

- Filming and photography are permitted for scientific purposes and to publicize the attributes and values of the protected area (área protegida, AP).

4.7.3 Medium-intervention zone (zona de mediana intervención, ZMI) The spaces or sites defined under this category may be subject to interventions of medium intensity, frequency, and impact in the practices and activities that may be carried out.

The objectives are aimed at providing spaces where resources may be used and the impact on those resources can be controlled, subject to reasonable limits established by law.

Water resources, ecosystems, habitats, biodiversity, and cultural resources are maintained in an acceptable state of health.

The ZMI comprises the Sendero a Playa Cirial, the Sendero a Punta Cañón; Punta Cañón; Playa El Inglés, Playa El Limón, Playa Hacienda vieja, and Playa Cirial.

This zone covers an area of 15.2 Ha., corresponding to 3.4% of the territory of the refuge…

The following are permitted in this management zone:

- Scientific research and monitoring authorized in accordance with binding regulations.

- The management of flora and fauna species for biological restoration purposes is permitted, based on scientific knowledge and aimed at fulfilling the ASP’s conservation objectives, subject to prior authorization by SINAC.

- The installation of equipment and structures of scientific interest or for management of the Refugio is permitted, provided they are essential.

- The installation of equipment and infrastructure for administrative use in managing the Refugio is permitted, provided they are essential.

- Visits by organized groups are permitted for tourism, educational, recreational, and scientific purposes.

- Filming and photography are permitted for scientific purposes and to publicize the attributes and values of the ASP.

- Sustainable use of marine resources in accordance with current national environmental legislation and any specific resource-management plans that may be prepared.

- Traditional uses and resource-use practices in accordance with the current legal framework and the objectives of the management category.

4.7.4 High-intervention zone (zona de alta intervención, ZAI) The sectors of the protected wildlife area (Área Silvestre Protegida, ASP) designated under this category would have a much higher level of intervention and use than the other zones. The objective or desired condition will always be to remain in an environmental state consistent with the management category established for the RNVSISL, while allowing greater scope for practices and activities characteristic of a high level of intervention. As in the other zones, the conservation and development objectives are aimed at providing spaces in which permanent, more intensive sustainable tourism may be maintained, as well as more broadly permitted productive activities or resource use, while still subject to strict controls and standards. Intervention for administrative and special uses has greater potential for development, provided that it is properly planned and controlled (SINAC, 2016).

This zone consists of part of the marine area of Bahía San Lucas; the infrastructure of the former Presidio; Playa Cocos and Playa Tumbabotes; Sendero a Playa Cocos, Sendero a Playa Tumbabotes, Sendero al Corral de Piedra, Sendero a la Antigua Porqueriza, Sendero a Playa El Inglés, Sendero a Playa Hacienda vieja, Sendero a Playa Bella vista, Sendero a Punta de Oro (Punta El Coco), Sendero Los Ceibos, Sendero Mirador de Islas, and Sendero El Trogón; as well as the two sites for Prevention, Protection, and Control infrastructure to be located at Tumbabote and Hacienda vieja. It also includes the sites of the Teca plot and the new Park Rangers’ house.

This zone covers an area of 27 Ha., corresponding to 6.1% of the refuge’s territory The following are permitted in this management zone:

-Recreational and tourism activities: guided walks along authorized trails for observing flora, fauna, and historical resources; noncommercial photography and video recording.

-The construction of visitor-service infrastructure (for example, visitor centers, restroom facilities, trails, lookout points, platforms, a café, and handicraft shops).

-The construction of infrastructure for the administration of the Refuge.

-Scientific research and monitoring authorized in accordance with the applicable regulations.

-The management of flora and fauna species for biological restoration purposes is permitted, based on scientific knowledge and intended to fulfill the conservation objectives of the ASP, subject to prior authorization by SINAC.

- The installation of equipment and structures of scientific interest or for the management of the Refuge is permitted, subject to prior authorization by SINAC.

-Filming and photography for scientific purposes and for disseminating information about the attributes and values of the ASP are permitted.

-The installation and operation of nonessential services approved under the regulations in force are also permitted in this zone…

4.9 Specific plans The Specific Plans (Planes Específicos, PE) establish a more detailed level of planning, primarily aimed at implementing the General Management Plan (Plan General de Manejo, PGM). They are designed according to the prioritized conservation objectives and may include more than one objective, as well as annual actions and activities for achieving them.

The scope of PE activities must be projected over annual implementation periods through operational plans (Plan Presupuesto), with the corresponding funding and the indicators required to monitor the impact of their implementation (SINAC, 2016).

As a result of updating the RNVSISL General Management Plan, the following 14 specific plans were identified, based on the targets established in the conservation objectives of the General Management Plan…” Now, given that what is challenged here is the lack of an objective and technical basis for the legislative proposal that culminated in the law at issue, it is essential to address the proceedings in legislative expediente nro. 21.287.

b- Regarding legislative expediente nro. 21.287, which gave rise to law nro. 9892.

The factual and legal circumstances described in the preceding section, the lack of funding, and other adverse effects that have prevented adequate protection of the area prompted several male and female members of the Legislative Assembly to propose a bill that would improve and better protect the area at issue, stating the following in the statement of reasons:

“…Because of its location in Golfo de Nicoya, Isla San Lucas should be dedicated to wildlife protection and species conservation. Accordingly, Decreto Ejecutivo Nº 29277-MINAE was issued in 2001, declaring Isla San Lucas a National Wildlife Refuge (Refugio Nacional de Vida Silvestre), for the purpose of protecting it from pollution, overexploitation of marine resources, other forms of interference with the ecological and hydrological system, population growth, and urbanization, and of safeguarding wetland ecosystems.

2008 Decree Additionally, a new Decreto Ejecutivo N.° 34282-TUR-MINAET-C de 25 de enero de 2008 was issued, which amended the previous decree and corrected, demarcated, and expanded the boundaries of the Refuge; it also declared the island’s sustainable tourism development to be of national interest and high priority.

The principal provisions of that Decree include the following • It expressly states concern about the deterioration of the former prison structures and indicates that they require immediate intervention for their proper restoration and preservation, as provided for in the relevant international conventions signed by Costa Rica.

• It provides that the Instituto Costarricense de Turismo is responsible for preparing the tourism-development plan for the Island, as established in Article 6 of Ley 5469.

• It states that Decreto Ejecutivo N° 29277-MINAE must be amended to permit the protection and reconstruction of the buildings on Isla San Lucas declared Historical-Architectural Heritage (Patrimonio Histórico-Arquitectónico) by the Ministerio de Cultura.

• It establishes limited, sustainable tourism development and the protection of the cultural heritage of Isla de San Lucas. To that end, the boundaries of Refugio Nacional de Vida Silvestre Isla San Lucas must be specified and expanded, thereby modifying only 5.5% of the current area for the protection of the existing cultural heritage and for limited sustainable tourism development consistent with the environmental rules prescribed by law. In this manner, 94.5% of the total area is preserved for wildlife protection.

• It expands the boundaries of the Refuge to include the islets near Isla San Lucas, which have significant biodiversity requiring protection but were excluded when the Refuge was established. As a result, the Refuge’s area is expanded by 210,17 hectares, including portions of water and the islets, which are important nesting sites for birds native to the area.

• A Permanent Commission is hereby created, composed of the Governing Ministers of Cultura, Juventud y Deportes, Turismo y Ambiente y Energía, or their representatives, and the Alcalde de Puntarenas or his or her representative, charged with ensuring the sound management of municipally administered lands. It is provided that the Commission shall have a General Coordination Secretariat, whose head shall be appointed by the Presidente de la República.

• Prohibitions are established within the Municipal Administration Area (Área de Administración Municipal), including hunting, fuel supply in order to prevent environmental pollution, and the use of water for tourism activities that would undermine preservation of the environmental flow (caudal ecológico) required to maintain the island’s ecosystem, among others.

Two considerations concerning this decree are fundamental to justifying the need for new regulations that provide real and practical tools to facilitate the development of Isla San Lucas:

The first arose from the opposition that this decree generated among certain groups, which led them to file an action challenging its constitutionality (acción de inconstitucionalidad). In judgment 13099 del 4 de agosto del 2010, the Sala Constitucional stated that, despite the clear environmental interest in maintaining formal protection of Protected Wildlife Areas, the reduction of the Refuge area intended for limited sustainable tourism development could be made only by law.

“The surface area of protected wildlife areas constituting the State’s natural heritage, regardless of their management category, may be reduced only by a law of the Republic, after conducting the technical studies that justify the measure” (judgment 13099-2010).

Accordingly, the Poder Ejecutivo may not reduce these areas without following the legislative procedure. For that reason, the Sala partially grants the action and annuls article 1° solely insofar as it excludes from the protected area of Refugio Nacional de Vida Silvestre Isla San Lucas the “5.5% of the current area for the protection of cultural heritage,” due to its violation of constitutional articles 11, 50 and 89, but not insofar as it adds the marine sector and islets, since the Poder Ejecutivo is authorized to do so by Executive Decree (Decreto Ejecutivo).

In rendering this judgment, the members of the Tribunal Constitucional conducted a judicial inspection (reconocimiento judicial) on 4 de junio de 2010, during which they confirmed “the visible lack of maintenance, over the course of several five-year periods, of the buildings located on Isla San Lucas and the need to take action to halt the advanced deterioration suffered by the infrastructure existing there (and by the wooden structures that once existed at the site), as well as the urgent need to prevent its imminent disappearance.” The Sala further states that “a form of rural tourism with a low ecological impact and respectful of environmental regulations is compatible with Constitutional Law (Derecho de la Constitución), which encompasses the international obligations extensively developed in the Sala’s precedents (to which this Sala refers), and with article 89 of the Constitución Política, which establishes cultural objectives, including protecting natural beauty and preserving and developing historical heritage, whose value is enhanced by the public’s ability to access it.

Therefore, no incompatibility has been demonstrated between environmental protection and the preservation of cultural assets made available to humanity, on the one hand, and a project that must be developed in full integration with the environment, encompass all its components, and exclude none, on the other.” Finally, it should be noted that the judgment leaves unchanged the establishment of the Permanent Commission for the administration and development of Isla San Lucas.

The second consideration is that this Commission operated only during its first few years. From 2014 to 2017, its members were not even appointed, which undoubtedly shows that, despite previous efforts through the issuance of executive decrees, the care and protection of the island were neglected.

The situation of the Island In recent years, a series of acts of vandalism have significantly undermined the history embodied by San Lucas. In Agosto de 2017, two park rangers from Sistema Nacional de Áreas de Conservación (SINAC) were violently assaulted, which led the agency to reduce surveillance on Isla San Lucas. Since then, System personnel have visited the site only three days a week, slept in tents, and transported water in containers from Puntarenas.

During the assault, the perpetrators stole the park rangers’ weapons, the appliances from the cabin where they lived, and cash collected from tourist visits. They also damaged the infrastructure “to the point that it was rendered unusable.” Moreover, in November 2017, during the night, unidentified persons entered the Island and set fire to a three-story building constructed in 1930, which had housed the command headquarters and administrative offices of the former penal center. The fire consumed approximately 265 m2 of the architectural heritage.

The offenders took part of the roof of the house occupied by the park rangers, stole the doors of the chapel that the Centro de Patrimonio had restored in 2014, took the support posts from the dispensary, tore down signs, and caused widespread damage.

Because of this fire, the Centro de Patrimonio acknowledged that the property did not have a sustainable project guaranteeing public utilities, mainly because of the lack of available water. This, coupled with the lack of electricity, meant that the command headquarters remained unoccupied, causing the infrastructure to deteriorate because homeless persons use it as a shelter.

The acts of vandalism that have occurred in recent years and the lack of potable water resulting from damage to the well make the Island a highly vulnerable site; with each instance of damage inflicted on the site, the history that efforts have sought to preserve is gradually dismantled.

For this reason, there is a firm conviction that a solution must be found to the Island’s problems, so that it may be managed appropriately and comprehensively, allowing for research, recreation, and the use of natural resources such as beaches, trails, the flora and fauna of the tropical dry forest, the diversity of birds and mammals, and the enjoyment of the site’s extensive scenic beauty. Together with adequate preservation of its heritage, these resources may provide attractions for ecotourism development in the Golfo de Nicoya and have a positive impact on the province of Puntarenas.

In view of the foregoing, with the certainty that the executive decrees issued constituted an initial step toward protecting this territory and that it has now been established that this legal classification is insufficient to provide better treatment for the site, and in the interest of providing greater protection for the history and culture housed on Isla San Lucas and protecting and conserving its biological resources, it is proposed that Parque Nacional Isla San Lucas be created and declared Historical Heritage (Patrimonio histórico) by law. In addition, the group of buildings comprising the former Presidio will be classified as Historical-Architectural Heritage (Patrimonio histórico arquitectónico).

The initiative proposes dividing the Island into zones so that the key areas for preservation and tourist use may be identified and developed in an orderly manner. The objective is for families to enjoy a “complete outing,” consisting of a visit to the historical and cultural center, use of the natural area (such as the travel route or additional trails), and, finally, the beach area. In addition, Parque Nacional Isla San Lucas is intended to complement visits to the other islands in the Gulf.

This is consistent with the position expressed by the Sala Constitucional:

“[…] the Chamber must analyze the specific case, since both rights—the right to the natural environment and the right to the urban environment—must be balanced when Cultural Heritage is involved, because these are also constitutional values that cannot legitimately be excluded from the rights of access and enjoyment held by all private individuals, whether nationals or foreigners, which is known as their enhancement” (voto 13099-2010).

With regard to the marine area, both Playa Cocos and the surrounding areas have potential for sun-and-sand tourism activities, as well as controlled observation of marine life using basic equipment (snorkeling), owing to the abundance of species observed. The report also states that “controlled, low-impact use is compatible with the sustainability of any ecological processes that may exist in the area.” Accordingly, the Island combines two types of attractions—historical-cultural and natural—that have not been enhanced but possess the characteristics necessary to become a source of attraction for domestic and foreign visitors, benefiting not only the Island but also the other islands of the Golfo de Nicoya.

In historical-cultural terms, the operation of the prison until 1991 represents a milestone in the country’s history. This is, without question, the principal attraction. The structures and architectural complex that remain standing offer the possibility of recovering substantial elements of Costa Rica’s historical past.

The natural attractions consist primarily of the plant associations and associated fauna described earlier in this document. The development of trails and activities involving recreation, enjoyment, and environmental education would be the principal means of placing these types of cultural values at the service of families.

To achieve the objectives described, the creation of an Administrative Board (Junta Administradora) is proposed, comprising five principal stakeholders who will strike a balance among preservation, conservation, and the low-impact development required to provide the necessary conditions for enjoyment. It is also essential that this Board have the capacity to act, so that every aspect of this proposal may be implemented.

For the reasons stated and with the aim of positively impacting the development of Isla San Lucas and the province of Puntarenas, I submit this bill for consideration by the women and men members of the Legislative Assembly.” A review of the legislative record in question also revealed the position expressed by MINAE in its response to the hearing before the Asamblea Legislativa, at folio 272 of legislative file no. 21.287, as follows:

“…We value the efforts to preserve the area and the interest shown in it, and we are certain that this initiative will provide better maintenance of the facilities and the more recent construction, as well as the cleaning of trails and beaches on the Island, thereby preserving and displaying its unique historical value within the country…Regarding coordinated work on the Island, we should mention that meetings have been held with the proponents of the Bill, but coordination is needed with various institutions seeking the sound management of this potential National Park, including the Instituto Costarricense de Electricidad, AyA, the Ministerio de Turismo, personnel from Guardacostas and Fuerza Pública, the Ministerio de Cultura y Juventud, including the Museo Nacional, as well as a SINAC-MINAE team to support the process. If this bill is enacted, an adequate supply of water, telecommunications, electricity, and security will be indispensable, as these are basic requirements for considering the tourism-oriented development envisaged for the Protected Wildlife Area (Área Silvestre Protegida, ASP).

The proposal could consider operationally strengthening the Refugio Nacional de Vida Silvestre Isla San Lucas (RNVSISL), should the women and men members of the Legislative Assembly deem it appropriate. This would make it possible to position it as a unique ASP combining natural and cultural resources and to establish a financial mechanism to guarantee its proper management, particularly with respect to adopting and implementing measures to combat climate change, given its island status, and maintaining its historical infrastructure. It should also have an interinstitutional coordination mechanism and support the generation of socioeconomic development in its area of influence, which lacks employment opportunities, while linking the economies of the other islands. Article 6 proposes that all zoning of an ASP result from the technical analysis contained in the General Management Plan (Plan General de Manejo), a planning instrument that guides the management of the ASP toward fulfillment of its objectives.

We suggest that the definition of the tourist zone be based on the findings of subsequent technical studies under the General Management Plan. Regarding the creation of the Governing Board (Junta Directiva) of Parque Nacional Isla San Lucas in Article 7, it is recommended that it be a maximally deconcentrated body (órgano de desconcentración máxima) attached to the Ministerio de Ambiente y Energía, with instrumental legal personality (personalidad jurídica instrumental) for the exercise of its powers. It is also recommended that the positions be tenured and that the Board be chaired by MINAE. We further recommend that its members be persons with appropriate technical and specialized qualifications, assisted by an Executive Manager of the Board who would support the administration’s management of specialized work such as the conservation and restoration of the Island’s cultural heritage…In Article 18, it is suggested that the word ‘security’ in the title be changed to ‘Staffing’ so that other types of support personnel may be used for activities such as sustainable tourism, environmental education, maintenance, and others…We remain fully willing to hold joint meetings and working sessions to strengthen the proposed bill, with a view to developing an initiative capable of guaranteeing the conservation of the ecosystems of Isla San Lucas while also turning it into a driver of socioeconomic development for Puntarenas and the Golfo de Nicoya.” The position set out in the Unanimous Favorable Report issued by the Comisión Permanente Especial de Turismo of the Asamblea Legislativa, which considered bill no. 21.287, from which the challenged law originated, reaffirms what was suggested and developed, stating, insofar as relevant, as follows:

“The Instituto Costarricense de Puertos del Pacífico (Incop), the Instituto Costarricense de Turismo (ICT), the Instituto Geográfico Nacional (IGN), the Instituto Costarricense de Acueductos y Alcantarillados (AyA), and the Comisión Nacional de Patrimonio Histórico y Arquitectónico were the institutions that supported the bill with opinions and suggestions for improvements that were highly useful in proposing changes to ensure precise content in its articles.

Additionally, taking the observations of IGN into account, a working group was convened to convert the geographic coordinates, since the information provided used a nomenclature that is being phased out. This contribution ensures greater accuracy and updates the information.

Moreover, a working group was established with the participation of some of the proponents, MINAE, ICT, the Ministerio de Cultura, and the office of the Primera Dama, the latter acting as mediator for the Poder Ejecutivo, so that the parties could reach agreements facilitating the definition of how Parque Nacional Isla San Lucas would operate, since the proposal contained in the bill requires a forward-looking vision in establishing a new form of administration. Finally, the consultation process concluded with input from several experts in the field, who also made various suggestions that were taken into account to enrich the text through potential amendments.” During the first-reading debate, legislators sponsoring the bill from which the law at issue arose, including former legislator Benavides, responded to the concerns of certain legislators about creating a national park given the already limited budget available to SINAC by stating the following (pp. 55 to 65 of the minutes of special session no. 37 of the Asamblea Legislativa of 10 de agosto de 2020):

“…and so that there is no concern about MINAE’s resources, it has already been under the control of MINAE and its park rangers since 2011, so it will not have to make any extraordinary effort once we turn that island into a national park (parque nacional). And we are going to turn it into a national park by law, just as other national parks that did not go through the administrative procedures previously mentioned were also created by law. That is how Parque Nacional Barra Honda was created, how Parque Nacional Isla del Caño was created, and how Parque Nacional Braulio Carrillo was created, because this very Asamblea Legislativa wanted to establish a national park, especially in a territory such as San Lucas, which is already a wildlife refuge (refugio de vida silvestre). Thus, there is no inconsistency whatsoever, nor is there any technical or environmental obstacle to granting national-park status to a territory that has been a wildlife refuge since 2001.

But now we come to the part that perhaps prompted the actions taken following the introduction of this bill. It is precisely the fact that, although the island was declared a wildlife refuge, its management and administration did not actually seek to protect its historic heritage assets (bienes patrimoniales históricos). Although the group of buildings that had formed part of the prison was declared historic heritage (patrimonio histórico) in 2002, there was no protection of any kind.

Moreover, it is evident that neither MINAE nor, in particular, the Sistema Nacional de Áreas de Conservación had—at least at that time—either the technical expertise or the resources to protect the heritage buildings (edificios patrimoniales), much less the archaeological assets (bienes arqueológicos), or to provide the island of San Lucas with basic services, not even sanitary facilities.

In other words, today—today, so many years after it became a wildlife refuge and after its assets were declared historic heritage—there is not even a sanitary facility there for those who visit the park. That is the reality.

And that is precisely the reality we have sought to change. In 2008, through an executive decree—an executive decree that I had the honor of originally drafting, together with the ministers of Cultura and Medio Ambiente at the time, but especially with the support of President Óscar Arias Sánchez, who believed in this project as a way of combining the protection of nature, the conservation and restoration of our architectural buildings and our architectural heritage (patrimonio arquitectónico), and the development of sustainable, low-impact tourism, such as we have been able to undertake in the national parks. But not exclusively in the hands of those who, at the time, were unsuccessfully administering it for purposes of its protection.

Accordingly, a governing board was established by decree that included the Ministerio de Ambiente, the Ministerio de Cultura, and also the Ministerio de Turismo, the local mayor’s office, and another representative of the Poder Ejecutivo, so that they could carry out those different tasks.

We made the mistake of reducing the size of the reserve area. That is how I see it now, because what we were trying to do was to administer that particular area while leaving the remainder as a wildlife refuge. But the objective was clear and sound: to provide the necessary administrative and financial conditions so that what had been happening up to 2008 would not continue. While it was exclusively under SINAC’s control, we lost the island’s former library; a school was lost—all of them heritage buildings. The commissary was lost, and so was the entire neighborhood known as Las Jachas, consisting of the houses occupied for certain periods by persons deprived of liberty at the penal colony, the agricultural penal colony. A large part of the heritage was lost, and that is why, in 2008, we set about rescuing it through that executive decree, which we signed under the leadership of don Óscar Arias.

Several citizens exercised their right to file constitutional challenges (acciones de inconstitucionalidad), which were decided in 2010. At that time, Sala Cuarta held in two rulings that the wildlife refuge had indeed not been reduced in accordance with the Constitución Política; that a protected wildlife area (área de vida silvestre protegida) cannot be reduced by decree, but only by law, and we complied with that ruling. However, it upheld the remaining provisions of the decree so that the administration would continue to be shared with ICT, Cultura, Ambiente, and the local government.

And I am going to briefly read a passage from that 2010 ruling, trusting that later one of my colleagues will give me a little of their time so that I can continue developing these arguments.

The Chamber stated: As indicated in the Chamber’s opinion, the Poder Ejecutivo is empowered to issue new rules to safeguard other rights of importance to the national and international community, even in coordination with smaller entities such as municipal corporations.

Conversely, if the Chamber were to hold that a single administrative authority takes precedence over all others, as the constitutional challenge indirectly requests, that solution would be self-contradictory and detrimental to other human rights embodied in the international obligations undertaken by our country and previously regulated, such as the enhancement (puesta en valor) of protected monuments of historic value, as well as the termination of their protected status (desafectación).

A form of rural tourism with a low ecological impact, respectful of environmental regulations, is compatible with the right established in the Constitution, which encompasses the international obligations extensively developed in the Chamber’s precedents, and with those international obligations and Article 89 of the Constitución Política, which establishes cultural objectives that include protecting natural beauty and preserving and developing historic heritage, whose value is enhanced by the public’s ability to access it.

Therefore, no incompatibility has been demonstrated between environmental protection and the preservation of cultural assets made available to humanity through a project that must be developed in full harmony with the environment.

It is worth recalling the supporting submission (escrito de coadyuvancia) filed by the executive president of the Instituto Costarricense de Turismo, in which he specifically identifies enhancement as a necessary means of providing access to the island’s manifestations of human activity” (end quote).

What the Sala Constitucional did was definitively place on an equal footing constitutional principles of equivalent standing concerning environmental protection, the protection of historic heritage, and the right of Costa Ricans to visit freely and appreciate the natural environment of their territory, as well as their heritage assets, to enjoy them in a wholesome manner, and to derive economic benefit from them so that Costa Rican families can live better—which is precisely what tourism seeks to achieve.

And that 2010 judgment was crucial in initiating the reconstruction of the island’s heritage and gradually improving its management and administrative performance, as I will explain in the second part of my remarks…” “…And I thank my colleague and fellow native of the same province, Deputy Chan Mora, for the support that she and her colleagues have expressed for this bill.

I continue by saying that, once those uncertainties were cleared up in 2010 by the Sala Constitucional’s ruling, we began working hard to determine how we could obtain the resources to restore the historic buildings, or at least a substantial portion of them, given that conservation or restoration activities on the island are extremely complex.

Imagine what it means to have to carry out repairs on an island where you cannot stay overnight, where water is not plentiful—particularly drinking water—and where there was no electricity either.

Traveling there to perform construction work is not easy, but we succeeded. With an investment of nearly two hundred… no, in this case nearly one hundred and ten million colones, the Ministerio de Cultura restored the police headquarters and the main building in 2011.

We went there for the inauguration of that monumental project. Everything was restored, from the offices to the bathrooms, the meeting rooms, and the places where the person who presided over and directed the penal facility during the years it operated had his offices—a three-story building that was completely restored in 2011. We went with the then minister, don Manuel Obregón.

As we had done in 2008, after signing the executive decree with President Óscar Arias, we made a visit accompanied by don José León Sánchez, who I hope is listening to today’s session.

Because don José León has also believed in this project to restore the island’s historic character, alongside its new status as a national park, which will also devote its efforts to conserving the environmental heritage (patrimonio ambiental).

Then, in 2013, we launched the public procurement process (licitación) with financial support from the Instituto Costarricense de Turismo and the Instituto Costarricense de Puertos del Pacífico, and nearly two hundred million colones were invested in restoring the former chapel.

It is a truly magnificent chapel that had been left in ruins; not even its doors had survived the period during which no follow-up whatsoever was given to the protection of the historic heritage. Thus, the chapel was successfully inaugurated in 2014.

Unfortunately, in subsequent years the island was treated with great neglect. The Ministerio del Ambiente gradually had fewer personnel available to protect the island until, in 2017, vandals entered the island as though they owned the place, as they usually did, and set fire to the police headquarters in which nearly two hundred million colones had been invested.

And nothing remained. Well, some of the now-charred structure is still there, but that investment was lost precisely because the island was being poorly administered.

And I must say that the island remained in that state of abandonment from 2014 to 2018, despite the 2008 Executive Decree. The neglect was such that, from 2014 until 2015 or 16, the island’s administrative board was not even constituted. The final straw came in 2017, when the police headquarters was set on fire.

Fortunately, this Administration has been different. Institutions have coordinated their efforts on the basis of the decree that we signed under don Óscar’s Government in 2008, and, under the coordination of the First Lady, numerous projects have begun: the construction of sanitary-facility blocks that will soon be inaugurated, improvements to the park rangers’ house, access to solar energy, another attempt to restore and reconstruct the police headquarters, and also the medical dispensary, a building that was on the verge of collapse.

Accordingly, this bill—and now, to come to the point with which I wish to conclude—will indeed establish a different form of administration for a national park.

It will be administered differently because its administration will also be shared: the Ministerio del Ambiente, the Ministerio de Cultura, the Ministerio de Turismo, the mayor’s office, a local representative, and another representative of the Poder Ejecutivo will all be represented.

They may also place the administrative and financial management of this new national park in trust (fideicomiso) with a State-owned bank. The vision is indeed different: it will be a national park in which the environment and natural resources will be protected.

But we are not going to relegate the protection of the historical heritage that belongs to our children to second or third place; a historical heritage that should not be lost, burned, or allowed to deteriorate every day, as we unfortunately lost several heritage buildings through sheer neglect.

But, in addition, there will be a different administrative system to allow sustainable tourism to develop, so that we can have decent docks where tourists can arrive, dock, and disembark on that island under first-rate conditions; so that they can enjoy the trails; so that they can access some of its beaches; so that they have somewhere to eat or drink during their stay on the island; and so that there can be first-rate rather than second-rate tourism, as many tourists unfortunately have to endure when they visit some of our national parks, because we have condemned them to travel in dreadful conditions without providing what we should provide, and because we have also failed to introduce administrative variables that guarantee the application of technical tourism criteria.

We have devoted ourselves exclusively to making them spaces for environmental preservation. And I want to tell you that this was not the intention of the political father of the national parks, Daniel Oduber Quirós.

When don Daniel promoted the national parks, he was also thinking about the development of the communities surrounding the parks through tourism development. And we have not adequately defended that legacy, because we have allowed our national parks to lack the proper conditions for effective tourism and for its economic benefits to permeate our rural communities.

Yes, this is a change in the managerial, administrative, and financial model of a national park, and I must acknowledge that. And it will be a national park, I repeat, that respects natural conditions and preservation.

Our Ministry of the Environment park rangers will be there, and the administration will be housed within a decentralized body (órgano desconcentrado) of the Ministry of the Environment.

The minister of the Environment will have a casting vote or double vote on the Board of Directors, as established by the Ley General de la Administración Pública. But within this logic, within this framework, we will make sustainable tourism development a fundamental objective of Parque Nacional Isla San Lucas, so that its benefits reach the men and women of Puntarenas, the inhabitants of the islands, the inhabitants of the coast, the Nicoya peninsula, Paquera, Cóbano, Lepanto, the coastal area, and the Central canton; so that they reach the residents of Manzanillo and Costa de Pájaros, and extend as far as Garabito; and so that people who make their living from the sea may even convert their fleets, making it both purposeful and economically viable to bring tourists to the new Parque Nacional de Isla San Lucas.

And we want to make it what Alcatraz represents for San Francisco, California, in the United States. They receive more than one million visitors each year. Perhaps San Lucas will not be able to do so because of its carrying capacity (capacidad de carga), but we can generate a great deal of tourism—a great deal—under a different formula, in which nature is not merely something to be viewed from afar, but something that, with respect for it, we human beings can also use to feed our people and our families and give meaning to nature.

It is an extraordinarily beautiful place, and I invite you to visit San Lucas. Twenty minutes from the port of Puntarenas lies an island filled with nature, four hundred and sixty-two hectares, with a former penitentiary and historical secrets, where Beltrán Cortés and don José León Sánchez were imprisoned, so that you can discover the disk where prisoners were placed when they were to be punished and from which they emerged half-dead after spending days dehydrated there.

So that you can visit El Coco beach, the largest beach on San Lucas; venture along its trails and discover the islands, Inglés beach, and Tumbabote beach; travel around the islets surrounding the island; and discover its wildlife and all the natural riches the island possesses, so that we can economically develop a region that is impoverished and neglected in many respects, namely the gulf of Nicoya region. And so that we can turn the gulf of Nicoya into a jewel that allows us to engage sustainably in commerce, business, and other activities, with respect for nature, but also with respect for human beings as the highest expression of that nature. That is what we intend: a new form of management, agile management, supported by the trust (fideicomiso) referred to there, which will be closely overseen by the Contraloría General de la República but entrusted to a Costa Rican state-owned bank.

And then we Costa Ricans may be able to prevent the sad and even shameful episodes we have had to endure in other national parks, where proper attention has not been given to tourists and where adequate infrastructure does not exist.

And on this island there will indeed be concessions (concesiones); private third parties will be permitted to provide services. We will encourage the participation of local associations in the distribution of concessions and permits (permisos), so that they too have opportunities, but the opportunities will be immense both inside and outside the park. As you know from the text, hotels and gambling are prohibited within the park. Visits will be limited to a single day, so that visitors will hopefully stay overnight, hopefully sleeping in the cabins and hotels in the port, or in Jacó, Lepanto, Cóbano, Paquera, or any of the other communities from which it will be easy to travel by sea to our island of San Lucas.

Today a national park is born, a new national park with a different administration that takes into account the environment and architectural and historical heritage, and also takes sustainable development into account…” (Emphasis not in the original).

Of particular interest, regarding the expansion of protection brought about by this law, it is appropriate to quote the remarks of Deputy Villalta Flórez-Estrada during that first debate, on pages 71-76, in which he stated the following:

“Deputy José María Villalta Flórez-Estrada:

Thank you, Mr. President, ladies and gentlemen of the Legislative Assembly.

Today we are debating this bill to create a new national park in our country.

I must confess, first of all, that in light of certain positions in this Asamblea Legislativa, I thought I would not witness the creation of a national park during these four years.

I thought it likely that we would debate in this Plenary bills to eliminate or reduce protected wildlife areas (áreas silvestres protegidas) and national parks. But look how things have turned out: we are debating a bill to create a new national park, with a good chance that it will be approved.

And that is important. Under the international treaties signed by the country, such as the Convenio para la protección de las bellezas nacionales de los países de América Central and the Convenio de diversidad biológica, and also under our legislation, national parks are areas of absolute protection (áreas de protección absoluta); they are the protected areas with the highest category of protection.

An area is declared a national park when there is a desire to protect and conserve a natural area and when the richness and distinctiveness of the natural resources, ecosystems, and species of flora and fauna found there are so significant and so important that special protection is considered warranted.

Our system of protected wildlife areas includes various management categories (categorías de manejo).

A national park is the category affording the greatest protection, reserved for areas of unique natural beauty, where there are endangered ecosystems or highly threatened ecosystems, or unique and valuable resources that must receive special protection.

Of course, Isla San Lucas generally—or at least broadly—meets those criteria, as I submit here. Because it is an island, it has an endemic ecosystem (ecosistema endémico). It is an island of great national beauty that was certainly altered in the past, but that has now been wonderfully reforested and is home to unique species.

But it is also true that San Lucas brings together biological heritage and cultural and archaeological heritage. It is not merely a place of natural beauty; it is also a central element of our country’s historical and architectural heritage. That former penitentiary and all the history associated with it also constitute an archaeological site requiring greater protection and further research.

And it is a place—an island in a privileged location in the gulf of Nicoya—that indeed has great potential for sustained tourism development. Those three factors converge on the island.

So, what management category does San Lucas currently have? San Lucas is currently a publicly owned wildlife refuge (refugio de vida silvestre), a public wildlife refuge, and it is also an island; therefore, San Lucas is currently protected as part of the State’s natural heritage (patrimonio natural del Estado), but it does not have the management category of a national park.

Those forests, natural riches, and places of beauty currently have a lower category of protection. We were already under the administration of the Sistema Nacional de Áreas de Conservación, and it is a protected wildlife area, except for the portion comprising historical architectural heritage, where the involvement of the Centro de Patrimonio del Ministerio de Cultura prevails, or should prevail; but this arrangement has certainly not worked well.

We have not achieved a coordination system under which MINAE, with respect to the protected wildlife area, and the Centro de Patrimonio del Ministerio de Cultura, with respect to the protection of historical, cultural, and architectural heritage, coordinate their efforts to preserve it. And the historical architectural heritage has certainly deteriorated.

But this is the first point I would like to emphasize. This bill increases the category of protection of the protected wildlife area currently administered by MINAE. It will remain under the administration of MINAE through a Board of Directors structured as a decentralized body, similar to the structure found in other protected areas, albeit with some differences. If this law is enacted, it will remain a protected wildlife area, but one with a higher category of protection.

For my part, I would never approve a bill modifying the category of protection of a protected wildlife area in order to reduce that category without all the technical studies required by Article 32 of the Ley Orgánica del Ambiente.

Any modification entailing greater intervention or a reduction in the management category must indeed comply with all those studies.

What is different in this case is that we are approving a law that would increase that category of protection, and it is important to make that clear. The island—the terrestrial portion of the island that currently forms part of the Refugio de Vida Silvestre de San Lucas—covers four hundred and sixty-two hectares; four hundred and sixty-two hectares that fall under the wildlife-refuge category.

Under this law, those forty-two hectares (sic) would become a national park. Of that area, five point five percent of the island’s territory—approximately five percent of the island’s territory—is declared a tourist zone (zona turística) under this law. But that designation was already made in the executive decree just mentioned by Deputy Benavides Jiménez, Decreto Ejecutivo 34.282, of 2008.

That portion constituting the tourist zone will have a differentiated form of management, a form of differentiated management compatible with the protected wild area (área silvestre protegida) and with sustainable tourism, in order to attract visitors to the island.

But the entire island will be a national park, and that is important. If we read, if we read Article 3, for example, which addresses the boundaries of the protected wild area, Article 3 of this bill states in its final paragraph: Within the two foregoing areas—the maritime area and the terrestrial portion of the island—there will be a differentiated management area dedicated to sustainable tourism activities.

Thus, the recognized tourist zone is also part of the national park, and this is important. In an earlier version of this bill, there was uncertainty, or it was not entirely clear, whether the environmental legislation governing protected wild areas would apply to the tourist zone, which will be subject to differentiated management; but because it is part of the park, the remainder of the environmental legislation must apply.

Fortunately, during the discussions and negotiations preceding the vote on this bill, we reached an agreement with Deputy Benavides Jiménez to refine the wording of Article 7, Scope and Restrictions. This article was important because it establishes the boundaries of and addresses how the national park will be managed.

At one point, there was a provision that appeared to suggest that environmental legislation would not apply fully in the area designated as the tourist zone, or that sought in some way to exclude from application—perhaps that was not the objective, but it could have been understood that way—the Ley de Biodiversidad, the Ley Orgánica del Ambiente, or other fundamental environmental laws.

That was corrected and clarified. So, note how important this is: the country’s environmental legislation will, logically, continue to apply in the national park being created.

Because it is a national park, an area under absolute protection, a number of activities are prohibited there, such as the extraction and exploitation of flora and fauna, hunting, logging, and the exploitation of natural resources, because the legislation governing national parks applies, including, for example, the Ley de Parques Nacionales, the Ley Orgánica del Ambiente, and the Ley de Biodiversidad.

Those laws also apply in the tourist zone, which is subject to differentiated management in order to facilitate and permit the development of tourism services. These laws nevertheless apply; for example, it could not be interpreted that hunting or any other activity involving the exploitation of natural resources is permitted in the tourist zone, because that would be incompatible with the protection of a national park. And I believe this is important. Look, San Lucas currently encompasses an area of two hundred sixty-two hectares, of which five percent—almost six percent—is occupied by the buildings of the former prison, or a slightly higher percentage.

What is the percentage now, Deputy Benavides? No... four hundred sixty-two hectares, of which a small percentage is occupied by the former prison area, the area constituting historical and architectural heritage, the trails, and the portion that will form, that will be designated, or that is already currently designated, as the tourist zone. But the remainder—more than ninety-five percent of the island—currently consists of forest land, including some small areas of primary forest and, above all, regenerating secondary forest, a forest of great ecological value because it is an island ecosystem.

Thus, by declaring it a national park through this law, we are ensuring the protection of the ninety-five percent of the island consisting of forest land that today serves as a wildlife refuge and that we seek to consolidate through more robust protection under our environmental legislation. That is important.

Now then, the framework proposed in this law was, in some way, already contemplated in decree thirty-four thousand... let me see, I lost the number, 34.282, whose limits were defined by the Constitutional Chamber. I participated; at that time, I was an adviser to former Deputy José Merino del Río, and I took part in drafting the constitutional challenge (acción de inconstitucional) against the decree issued by the Arias Sánchez Administration, which reduced the area of the wildlife refuge and which, in that respect, was declared unconstitutional by the Constitutional Chamber because it constituted a reduction by decree without the required studies.

But in that judgment, the Constitutional Chamber did weigh the competing interests and fashioned a Solomonic solution intended to reconcile the various interests at stake. The judgment upheld the validity of the decree’s articles establishing an obligation of interinstitutional coordination among the environmental branch, SINAC; the heritage-preservation branch, the Ministerio de Cultura; and the branch responsible for the island’s sustainable tourism development. In other words, there is already a mandate, so to speak—a framework established by the Constitutional Chamber—for managing the island.

In my opinion, what this bill does is, so to speak, consolidate or embody in law the framework that currently exists by decree and whose limits were established by the Constitutional Chamber. And, at least so that it is on the record, it is the intent or interpretation of this legislator—and I understand, as it must be, because constitutional case law is binding—that what is proposed in this law must be implemented within the framework of that Constitutional Chamber judgment, judgment 13.099-2010, which clearly established the limits of what may and may not be done in that tourist zone, or in the zone that will now become a national park but will be subject to differentiated management to promote tourism. The Chamber was very clear: any buildings constructed had to fall within the framework of promoting sustainable tourism—not large-scale buildings, and nothing that could damage or, of course, endanger that architectural heritage.

Quite the opposite: the island’s carrying capacity (capacidad de carga) must be respected; visitation must respect the island’s carrying capacity; and any buildings constructed must be strictly necessary to meet the basic needs of visitors and tourism-development operators, without this implying that development may extend to projects incompatible with a green philosophy or inconsistent with the site’s occupancy capacity. All of this must be ensured sustainably, in accordance with science and technology. The Chamber even refers to rustic, low-impact buildings.

Thus, in my opinion, the activities that may be carried out on the island to promote visitation have already been delimited by this Constitutional Chamber judgment, which also validated the interinstitutional coordination model. It must be said that the authorities have failed in this regard because, since that judgment was issued in 2010, coordination to put into operation this management model for the island—where there is a particular situation because the purely environmental component coexists with the protection of archaeological heritage and the promotion of sustainable tourism, given that it is a place of great tourist interest—has not been achieved by the institutions to date. We hope that this law will achieve that interinstitutional coordination, because San Lucas certainly has potential for visitation and as an attraction which, if kept within the framework of our legislation, could promote, for example, productive linkages (encadenamientos productivos) under the Ley de Biodiversidad with local organizations and communities, including those fishing villages and communities that could benefit more from tourist visitation and services such as tourist cabotage (cabotaje turístico), tourist transportation, and small-scale sport fishing. If all of that is connected, San Lucas certainly has great potential for developing the entire Golfo de Nicoya region, developing the central canton of Puntarenas, and promoting sustainable tourism.

For that reason, I see nothing wrong with this bill creating a park-management model that also incorporates architectural heritage and sustainable tourism, given the particular nature of this protected area.” (Emphasis not in the original).

That first debate concluded with 45 votes in favor of the bill and one against. In the second debate, it was approved unanimously by the 39 deputies present.

In conclusion, before this law, Isla San Lucas had already been declared a state-owned National Wildlife Refuge, with part of it declared national historical and architectural heritage, and the island’s sustainable tourism development had been declared a matter of national interest and high priority, under terms consistent with a prior study, as had the conservation and restoration of the former prison buildings on Isla San Lucas. Tourism activities were also permitted in the area under municipal administration, as was the preservation of the island’s cultural heritage, for which the ICT was required to prepare a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible) comprising an environmental impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve the economic, social, and environmental development objectives.

c- Concerning the Purposes and Administration of Parque Nacional Isla San Lucas.

It is important to note that there is not only a duty to protect the environment in the area concerned, but also a treaty-based and constitutional duty to preserve the historical heritage located there. Upon reviewing the regulatory framework preceding the challenged law and the technical administration under SINAC to which this area was already subject, the deficiencies and appropriate uses permitted for the various parts of the area had already been technically identified in the updated General Management Plan (Plan General de Manejo). MINAE possessed this information before the challenged law was approved, as well as the individualized uses and areas established on the basis of SINAC’s prior knowledge. Indeed, the areas to be differentiated were also updated with IGN during the working-group sessions, and they currently retain the same or greater protection and the same surface area. Accordingly, the challenged law is not considered to entail any environmental violation of the Constitution or of international conventions.

Quite the contrary, its protection has been expanded and strengthened. It bears repeating that the SWOT (strengths, weaknesses, opportunities, and threats; FODA, fortalezas, oportunidades, debilidades y amenazas) analysis conducted by SINAC justified updating the island’s 2012 National Management Plan, which existed before this law was approved. It identified the following needs and weaknesses of that location:

“2.4.1 Strengths - The legal framework of the ASP (Decretos Ejecutivos 29277- MINAE del 12 de febrero del 2001, No.30714-C del 26 de Setiembre de 2002, No.34282-TUR-MINAEC del 25 de enero de 2008, No.13099 de agosto del 2010, Constitutional Chamber Decisions Voto 08928 del 18 de agosto del 2004, Voto 13099 del 4 de agosto del 2010, the Ley de Biodiversidad, among others), for site management and interinstitutional coordination (MINAE, ICT, Municipalidad de Puntarenas, Ministerio de Cultura).

- The existing rules permitting local stakeholders to provide nonessential services - The ASP planning tools (General Management Plan, specific plans, management effectiveness assessments, among others) - The refuge’s forest cover (cobertura boscosa) (vegetation cover, tropical dry forest, mangrove) - Its tourism, environmental, and cultural appeal, of great historical, archaeological, and geological value, with scenic beauty, flora, fauna, trails, and beaches open to visitors, which have positioned San Lucas in the tourism market.

- The trail network that facilitates activities for tourism use and forest-fire control in the protected wilderness area (Área Silvestre Protegida, ASP).

-The concept of the refuge as a source of development and a generator of socioeconomic resources for the region.

-A site of importance for sheltering users of the Gulf in the event of weather-related events.

-The installed management capacity (although minimal, there is an institutional presence (SINAC, fire management).

-There is support from Pro-parques, INCOP, private tourism companies (tour operators), and local associations that assist with activities on the island.

- The refuge’s geographic location, as an accessible island situated 6 km off the coast of Puntarenas.

-The responsible marine fishing area as a buffer zone. General Management Plan of Refugio Nacional de Vida Silvestre Isla San Lucas.

2.4.2 Weaknesses - Lack of resources (personnel, equipment, materials, infrastructure, and basic services) to manage the Protected Wilderness Area adequately.

- The deterioration of infrastructure in several sectors of the ruins of the former Presidio and the lack of an action plan by Patrimonio cultural that would treat the island as an integrated circuit.

- The existence of several points providing easy access to the island, which creates insecurity for visitors exposed to theft and assault and also hinders efforts to prevent harm to, protect, and monitor natural, cultural, historical, and archaeological resources.

- Pollution caused by unregulated visitors at unsupervised sites.

- The presence of invasive plant species at the site.

- The limited extent of the marine area belonging to the refuge.

- Limited knowledge of the refuge’s marine resources (information gaps).

- Limited knowledge among the various stakeholders (Municipalidad de Puntarenas, ICT, SINAC, and Ministerio de Cultura) concerning the site’s natural and archaeological resources, and the lack of dissemination of existing information.

- The absence of physical demarcation of the refuge’s marine area and the lack of a technical definition in the regulations (6 meters in the marine area not encompassed within the marine protected area).

- The lack of public-use regulations governing tourism activities in the refuge.

2.4.3 Opportunities -Access to marine tourism services in the Golfo de Nicoya.

-The existence of the INCOP-ICT-BN Trust.

- Cultural activities (sports, religious activities, and local traditions).

- The existence of organized groups (local stakeholders) that could participate in providing Non-Essential Services in the Refuge.

- Academic interest in conducting research on various subjects (marine and archaeological resources, flora, fauna, among others, to fill information gaps).

- The existence of key stakeholders (public sector, NGOs, chambers, and private sector) with whom partnerships can be formed.

-The possibility of entering into agreements with various entities (Municipalidad de Puntarenas, NGOs, among others).

-The existence of organized volunteer groups willing to assist in the ASP.

- The updating of the General Management Plan with the participation of key stakeholders.

- Demand among domestic tourists to learn about the ASP’s valuable historical, cultural, and natural contributions.

-The possibility of turning the site into an attraction for the cruise-ship sector arriving at Caldera and Puntarenas.

-The existence of various sources (research, among others) that may be used to fill information gaps.

-The interest of multiple public and private entities in using and protecting the resources of the refuge and the surrounding area.

2.4.4 Threats - Vandalism (theft and assault).

- Illegal hunting and fishing (the existence of illegal hunters and fishers).

- Looting of archaeological sites (huaquerismo).

- Pollution from solid waste reaching the Isla and Golfo de Nicoya.

-Invasive species (teak and mamón).

- The abandonment of domestic animals (dogs and cats) on the island.

- Illegal tourism and visitor use of the resources present on the Isla (archaeological, cultural, and natural).

-Climate change.

-Overexploitation of marine resources.

-The existence of proposals or intentions for high-impact tourism development affecting the refuge.

The results of the foregoing analysis make it possible to identify the aspects on which the actions to be implemented should be prioritized in order to bring about significant changes that positively affect the key management features of the RNVSISL. These actions are reflected in the goals and activities proposed for each Strategic Area. It is important to emphasize that the existing weaknesses must be prioritized, since undertaking such efforts will strengthen the capacity to reduce threats…” That is the public result of the study and monitoring that SINAC had conducted regarding that island in its capacity as the authority responsible for and technical body in charge of managing the Refugio Nacional de Vida Silvestre. It was a verifiable reality at the time the update of the Management Plan was undertaken, and its issues were also a matter of concern to all entities involved in the legislative process, since working sessions were held within the legislative subcommittee and helped improve the initial legislative proposal in order to address the identified threats and deficiencies. It is an indisputable fact: SINAC itself clearly identified in that study areas of the island that required greater protection than they had at the time, as well as the uses that were technically compatible with the zone:

“…4.7.1 Minimal- or no-intervention zone (Zona de mínima o nula intervención, ZMNI) The sectors of the ASP designated under this category have a minimal or nonexistent level of intervention. The objective or desired condition is to maintain an unaltered state or one with an almost imperceptible impact.

For this type of zone, the objectives are absolute protection; the development of tourism activities having very low impact, intensity, and frequency; research; and administrative use directed toward monitoring and protection.

This zone consists of the Cocineras, Aves, and Pan de Azúcar islands, which are located at the southern boundary of the ASP and provide refuge for several species of seabirds; the wetland or mangrove area; the springs (nacientes) of Quebradas Hacienda Vieja, Control, Quebrada Coyol, and their protection zones; Cerro Control and Cerro Cirial; Punta Barrigona, Punta Tumba Bote, and Punta Manzanillo. (Figure 14)…

4.7.2 Low-intervention zone (Zona de baja intervención, ZBI) Under this category, interventions are intended to remain at a very low level, although with greater possibilities for developing management practices and other activities. It is expected to fulfill objectives directed toward a strict level of sustainability in the management and use of certain ASP resources.

Administrative-use practices, specially regulated use of resources, and low-impact tourism may be permitted, but at a somewhat greater intensity and frequency than in the minimal-intervention zone.

This zone consists of the archaeological sites located in the RNVSISL; the marine area surrounding the ASP; Playa Cirialito, Playa Barrigona, Playa Bella vista, Playa Manzanillo, and Playa Pilitas; the Sendero a Punta vigilante; Punta Vigilante, Punta Cirial, Punta El Coco, and Punta Cirialito.

This area measures 401.6 ha, corresponding to 90.1% of the ASP’s total area (Figure 15).

The following are permitted in the low-intervention management zone:

- Scientific research or monitoring authorized in accordance with the regulations in force.

- The management of plant and animal species for biological restoration purposes is permitted when based on scientific knowledge and conducted to fulfill the ASP’s conservation objectives, as established in regulations and protocols previously authorized by SINAC.

- The installation of equipment and structures of scientific interest or for management of the Refuge is permitted, provided that they are essential.

- Visits for educational, scientific, prevention, protection, and monitoring purposes, as well as any other activity defined by the ASP administration, are permitted.

- Filming and photography for scientific purposes and to publicize the attributes and values of the protected area (Área Protegida, AP) are permitted.

4.7.3 Medium-intervention zone (Zona de mediana intervención, ZMI) The spaces or sites designated under this category may be subject to interventions of medium intensity, frequency, and impact in the practices and activities that may be carried out.

The objectives are directed toward providing spaces in which resources may be used and the impact on them may be controlled, subject to reasonable limits established by law.

Water resources, ecosystems, habitat, biodiversity, and cultural resources are maintained in an acceptable state of health.

The ZMI consists of Sendero a Playa Cirial, Sendero a Punta Cañón, Punta Cañón, Playa El Inglés, Playa El Limón, Playa Hacienda vieja, and Playa Cirial.

This zone encompasses an area of 15.2 Ha., corresponding to 3.4% of the refuge’s territory…

The following are permitted in this management zone:

- Scientific research and monitoring authorized in accordance with binding regulations.

- The management of plant and animal species for biological restoration purposes is permitted when based on scientific knowledge and conducted to fulfill the ASP’s conservation objectives, subject to prior authorization by SINAC.

- The installation of equipment and structures of scientific interest or for management of the Refuge is permitted, provided that they are essential.

- The installation of equipment and infrastructure for administrative use in managing the Refuge is permitted, provided that they are essential.

- Visits by organized groups of people for tourism, educational, recreational, and scientific purposes are permitted.

- Filming and photography for scientific purposes and to publicize the attributes and values of the ASP are permitted.

- The sustainable use of marine resources in accordance with current national environmental legislation and any specific resource-management plans that may be prepared.

- Traditional uses and resource-use practices in accordance with the legal framework in force and the objectives of the management category.

4.7.4 High-intervention zone (Zona de alta intervención, ZAI) The sectors of the ASP designated under this category would have a much higher level of intervention and use than the other zones. The objective or desired condition will always be to remain in an environmental state consistent with the management category established for the RNVSISL, while allowing greater opportunity for the development of practices and activities characteristic of a high level of intervention. As in the other zones, the conservation and development objectives are directed toward providing spaces in which permanent and more intensive sustainable tourism activities, productive activities, or more broadly permitted resource-use activities may be maintained, while continuing to impose strict controls and standards. Intervention for administrative and special use has greater opportunities for development provided that it is duly planned and controlled (SINAC, 2016).

This zone comprises part of the marine area of Bahía San Lucas; the infrastructure of the former Presidio; Playa Cocos and Playa Tumbabotes; the trail to Playa Cocos, the trail to Playa Tumbabotes, the trail to Corral de Piedra, the trail to Antigua Porqueriza, the trail to Playa El Inglés, the trail to Playa Hacienda vieja, the trail to Playa Bella vista, the trail to Punta de Oro (Punta El Coco), the Los Ceibos trail, the Mirador de Islas trail, and the El Trogón trail; as well as the two sites for Prevention, Protection, and Control infrastructure to be located at Tumbabote and Hacienda vieja. It also includes the sites of the Teca plot and the new Park Rangers’ house.

This zone encompasses an area of 27 Ha., corresponding to 6.1% of the refuge’s territory.

The following are permitted in this management zone (zona de manejo):

-Recreational and tourism activities: guided walks along authorized trails to observe flora, fauna, and historical resources; noncommercial photography and video recording.

-The construction of visitor-service infrastructure (for example, visitor centers, restroom facilities, trails, lookout points, platforms, a cafeteria, and craft shops).

-The construction of infrastructure for the administration of the Refuge.

-Scientific research and monitoring authorized in accordance with binding regulations.

-The management of flora and fauna species for biological restoration purposes is permitted, based on scientific knowledge and for fulfillment of the conservation objectives of the protected wildlife area (área silvestre protegida, ASP), subject to prior authorization by SINAC.

-The installation of scientific equipment and structures, or equipment and structures for management of the Refuge, is permitted, subject to prior authorization by SINAC.

-Filming and photography for scientific purposes and to publicize the attributes and values of the ASP are permitted.

-This zone also allows the installation and operation of nonessential services approved pursuant to the regulations in force…” This is not an arbitrary proposal or one that arose by chance, but rather one grounded in the actual circumstances of the public-domain property (bien demanial). Even though point 6 of that General Management Plan states that the wildlife area declared a national refuge is properly categorized, it must be taken into account that, as indicated in point 7 thereof, the plan was prepared on the basis of the regulatory and institutional framework existing at that time, revealing a need for interinstitutional collaboration in view of the insufficiency of its own technical and material resources documented in the plan; and that, in any event, this does not preclude finding that the 2012 Plan, updated in 2020, constituted a technical basis that did make it possible to determine the condition of the zone in question and potentially project greater and better environmental protection, which is consistent with the category conferred by the law challenged herein.

Costa Rica has international obligations to protect not only environmental resources but also cultural and architectural heritage, as it established in judgment no. 2010-13099 when addressing executive decree no. 34282-TUR-MINAE-C concerning Isla San Lucas, referenced in Whereas V. Nevertheless, despite the existence of the decree reviewed on that occasion, part of that heritage was destroyed because of the lack of a budget and SINAC personnel, the latter’s lack of specialization in protecting cultural heritage, and the lack of resources; our country is obligated to safeguard and preserve that heritage for present and future generations.

Based on the foregoing, each of the petitioners’ allegations will be addressed individually.

VII.CONCERNING THE ALLEGED REDUCTION IN THE AREA OF THE PROTECTED WILDLIFE AREA AND THE CHANGE OF CATEGORY WITHOUT TECHNICAL JUSTIFICATION. The petitioners state that section 3 of law no. 9892 delimits the coastal marine area to a depth of up to three meters, thereby reducing by 3 meters the former protected area that had been added by executive decree no. 34282-TUR-MINAE-C. They believe that the reduction in the protected area could disrupt life cycles and valuable ecosystems that operate in conjunction with the wetlands (humedales) of Estero de Puntarenas, thereby affecting various forms of life throughout the Gulf and a site regarded as a breeding ground for various marine species that reproduce in the zone. They argue that the claim concerning the reduction in protection affects the entirety of the challenged legislation because protection cannot exist if dozens of marine hectares are excluded. They add that executive decree no. 24282 included the Pan de Azúcar islet as part of Refugio Nacional de Vida Silvestre Isla San Lucas; however, the challenged law says nothing in that regard, and the petitioners therefore contend that it too was excluded from protection. They also question the change in the management category (categoría de manejo) of Isla San Lucas from a national wildlife refuge to a national park without technical studies justifying the change.

In accordance with the discussion in Whereas VI of this judgment, those allegations must be rejected. This Court finds that the representatives of Asamblea Legislativa who responded to the hearings granted in this action are correct in stating that this law further strengthens the environmental protection already existing in that area by conferring national park status on most of its area while retaining, for a smaller percentage, the same environmental protection it already enjoyed. No area was removed from protected status (desafectación), nor was the environmental protection area previously established by the cited regulations reduced, since the only provisions repealed by this law were Articles 2 through 8 of Ley 5469, Ley de Traspaso de la Isla San Lucas a Municipalidad de Puntarenas, dated 25 de abril de 1974. The petitioners’ claim of unconstitutionality on the ground that the protected area previously declared by the cited decrees was reduced is therefore wholly unfounded.

Indeed, executive decree no. 34282-TUR-MINAE-C of 25 de enero de 2008 amended the boundaries of Refugio Nacional de Vida Silvestre San Lucas in Article 1 as follows:

“Article 1—Article 1 of Decreto Ejecutivo Nº 33327-MINAE, published in La Gaceta Nº 172 of 17 de septiembre de 2006, is hereby amended to read as follows:

Article 1—…A portion of water described by the following Costa Rica Lambert Norte coordinates is hereby added to Refugio Nacional de Vida Silvestre Isla San Lucas: B. A coastal marine area consisting of the waters surrounding Isla San Lucas to a depth of 6 m (…)” (boldface added).

That territorial addition remained intact, as held by this Court in judgment no. 2010-13099 at 14:46 hours on 4 de agosto de 2010. Thus, the boundaries of Refugio Nacional de Vida Silvestre Isla San Lucas were indeed expanded through the addition of a “coastal marine area consisting of the waters surrounding Isla San Lucas to a depth of 6 m.” Article 3, challenged by the petitioners, provides as follows:

“ARTICLE 3- Boundaries. Parque Nacional Isla San Lucas shall consist of a land portion and a coastal marine area.

The land portion shall consist of the insular portion of Isla San Lucas, located in Golfo de Nicoya, on the map sheet of Instituto Geográfico Nacional entitled Golfo, Edición 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an area of four hundred sixty-two hectares (462 ha).

The coastal marine area shall consist of the waters surrounding the island to a depth of up to three meters (3 m). Within the two foregoing areas, there shall be a differentiated management area (espacio de manejo diferenciado) devoted to sustainable tourism, and to promoting and developing sites of historical, architectural, and environmental interest, which for all purposes shall be known as Zona turística (…)” (emphasis added).

The foregoing means that, under the challenged law, part of the territory of Isla San Lucas ceased to be under the “national wildlife refuge” management category and became a “national park.” That provision did not, however, abolish Refugio Nacional de Vida Silvestre Isla San Lucas.

As demonstrated in these proceedings, executive decrees nos. 29277-MINAE and 34282-TUR-MINAE-C remain in force, which means that part of the island in question—the part expressly claimed by the petitioners—has not lost its status as Refugio Nacional de Vida Silvestre Isla San Lucas, while most of the island has acquired a higher level of protection by being designated a national park. The same applies to the island’s coastal marine area, since the Pan de Azúcar islet and the other areas remain natural heritage of the State (patrimonio natural del Estado) because they form part of the state-owned Refugio Nacional de Vida Silvestre Isla San Lucas. Thus, geographically, no area whatsoever has been removed from environmental protection. Moreover, pursuant to Article 7 of the same law challenged herein, that area must be considered in the technical studies conducted in order to establish, as applicable, the most protective form of environmental management warranted in each case.

Furthermore, although this Court adheres to its position that even a lowering of the level of environmental protection afforded to an area requires a prior technical study, this particular case does not present such a situation. Considering the island’s legal, actual, and present circumstances, this case does not involve any regression in environmental protection (regresión de la protección ambiental). Far from it, as demonstrated in Whereas VI, if this law were annulled and the prior regulations remained in force, the area would retain a lower level of environmental protection, with the budgetary and administrative limitations that SINAC has already exhibited in adequately safeguarding not only the environmental area but also its historical heritage, with the same tourism-related powers but greater deficiencies in exercising the appropriate oversight and achieving the development sought by the prior laws, which would likewise remain in force.

Furthermore, given the particular circumstances of this case and everything previously cited, it is also untrue that the law challenged herein, which was processed under legislative expediente no. 21.287, is unconstitutional because it lacks any technical study or objective basis. As established, this area was already administered and studied by SINAC; in other words, the technical authority that determines the applicable management plan in accordance with the assigned level of protection had already identified and acknowledged certain deficiencies in that regard. In this case, the law in question does not reduce its environmental protection in any respect; on the contrary, it increases that protection by conferring national park status upon it in order to address the threatened situation identified by SINAC itself in the update to the area’s management plan, the reasons for which are also reflected in the statement of reasons for the legislative proposal that gave rise to law no. 9892. In addition to the foregoing, this Court stated the following in connection with a case involving Isla del Coco:

“…V. Regarding the alleged violation of Article 3 of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America—approved by Law number 3763 of primero de octubre de mil novecientos sesenta y seis—in relation to Article 7 of the Constitution, which provides, insofar as relevant, as follows:

“The Contracting Governments agree that the boundaries of national parks shall not be altered, nor shall any part thereof be alienated, except by action of the competent legislative authority. The resources existing therein shall not be exploited for commercial purposes.

The Contracting Governments agree to prohibit the hunting, killing, and capture of wildlife specimens and the destruction and collection of flora specimens in national parks, except when carried out by park authorities, by order of or under the supervision of those authorities, or for duly authorized scientific research.” Those provisions must be interpreted restrictively, such that the requirement that national park boundaries be established by statute applies only when the park would be adversely affected—that is, when its area is to be reduced—and not when the boundaries of the protected zones (zonas protectoras) of the State forest estate (patrimonio forestal del Estado) are to be expanded.” (Judgment no. 1993-5399, at 16:39 on 26 de octubre de 1993) Similarly, in Judgment no. 2006-5975, at 15:14 on 3 de mayo de 2006, this Chamber stated as follows:

“VII.- Expansion and reduction of protected wild areas (áreas silvestres protegidas).

In the brief filing the constitutional challenge (acción de inconstitucionalidad), the petitioner challenges—and identifies as a ground of unconstitutionality—the repeal of Decreto 23069-MIRENEM by Decreto 29019-MINAE, because it tacitly reduced the area of Refugio de Vida Silvestre Gandoca-Manzanillo, given that the former had expanded the boundaries of the Refuge.

An analysis of the decrees issued concerning Refugio Gandoca-Manzanillo shows that the Executive Branch has issued several in an effort to regulate its status. To clarify the current situation, it is appropriate to review those related to the subject matter of this action. First, there is DE-16614-MAG of 29 de octubre de 1985, which created Refugio Nacional de Vida Silvestre Gandoca-Manzanillo (REGAMA). The legal basis for the decree lies specifically in Article 2 of Ley N° 4465, but particularly in Article 18 of Ley N° 6919, Ley de Conservación de la Fauna Silvestre, which has since been repealed but at that time provided:

“Article 18.- National wildlife refuges (refugios nacionales de fauna silvestre) are those declared as such by the Executive Branch for the protection and study of wild flora and fauna, particularly those threatened with extinction. The Executive Branch is authorized to establish, within forest reserves and on privately owned land, areas classified as national wildlife refuges, which, for purposes of wildlife conservation, shall be administered by the Departamento de Vida Silvestre de la Dirección General Forestal del Ministerio de Agricultura y Ganadería.(…)” Article 6 of Decreto 16614-MAG expressly excluded the urban areas of Gandoca, Manzanillo and Puerto Viejo from that refuge. Subsequently, DE-23069-MIRENEM of 5 de abril de 1994 was issued; Article 16 of that Decreto repealed Art. 6 of DE-16614. The immediate consequence was that the urban areas of Gandoca, Manzanillo and Puerto Viejo became part of Refugio Gandoca-Manzanillo.

Decreto DE-29019-MINAE of 31 de octubre del 2000 was subsequently promulgated and, through Article 8, repealed Decreto 23069-MIRENEM; as a result, Article 6 of DE-16614 tacitly regained effect. At that point, the territory of the reserve was tacitly reduced by once again excluding the urban areas of Gandoca, Manzanillo and Puerto Viejo, restoring the situation established by Decreto N° 16614-MAG. Subsequently, however, the Executive Branch issued DE-32753-MINAE of 16 de mayo del 2005, which expressly repealed Article 6 of DE-16614; the urban areas of Gandoca, Manzanillo and Puerto Viejo once again became part of Refugio Nacional de Vida Silvestre Gandoca-Manzanillo, a situation that remains in effect to date.

Regarding the expansion and/or reduction of the territorial boundaries of the forest estate (patrimonio forestal), this Court, in Judgment N° 1999-5399 at 16:39 on 26 de octubre de 1993, stated:

“…if the Executive Branch is empowered to establish the boundaries of its forest estate, it must do so through regulations rather than legislation, with due compensation for the properties over which the forest estate is extended, because, pursuant to Article 9 of the Constitution and the theory of separation of powers, the Asamblea Legislativa is the only constitutional body empowered to enact statutes. Therefore, when public-domain property (bien demanial) is involved, it is illogical to believe that the State is restricted or prevented from acting to protect the flora and fauna of our lands.

II.Accordingly, because this action challenges an executive decree that expanded the boundaries of a national park—Isla del Coco—to a distance of fifteen kilometers over the sea, measured from the coastal low-water line, it is important to determine that the Executive Branch did so in the full exercise of its statutory and constitutional powers, since public-domain property is involved.(…)

V.Regarding the alleged violation of Article 3 of Convenio para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América—approved by Ley número 3763, de primero de octubre de mil novecientos sesenta y seis—in relation to Article 7 of the Constitution, which, insofar as relevant, provides:

“The Contracting Governments agree that the boundaries of national parks shall not be altered, nor shall any part thereof be alienated, except by action of the competent legislative authority. The resources existing therein shall not be exploited for commercial purposes.

The Contracting Governments agree to prohibit the hunting, killing, and capture of wildlife specimens and the destruction and collection of flora specimens in national parks, except when carried out by park authorities, by order of or under the supervision of those authorities, or for duly authorized scientific research.” Those provisions must be interpreted restrictively, such that the requirement that national park boundaries be established by statute applies only when the park would be adversely affected—that is, when its area is to be reduced—and not when the boundaries of the protected zones of the State forest estate are to be expanded. This article must be read together with Article 40 of Ley Forestal, which provides:

“The area of forest reserves, protected zones, national parks, wildlife refuges, and biological reserves within the forest estate may be reduced only by a statute of the Republic, following the corresponding technical studies substantiating the measure.” This is so because the legally protected interest (bien jurídico) is the “forest resource (recurso forestal),” a term that “means the protection and preservation of the integrity of the natural environment,” (Decision of the Sala Constitucional number 2233-93, at nueve horas treinta y seis minutos del veintiocho de mayo) existing in the area declared a national park and recognized by international legislation, the special statutes enacted for that purpose, and the texts of political constitutions. In this regard, Article 69 of the Constitución Política refers to the “rational exploitation of land,” the protection of which constitutes a fundamental principle (…).” (boldface not in the original) It bears noting what was stated in these constitutional precedents, even though this case concerns two statutes of equal rank rather than even a decree, as was the case in the precedent: “when public-domain property is involved, it is illogical to believe that the State is restricted or prevented from acting to protect the flora and fauna of our lands.” And that is precisely the case here.

This is so not only because there is no reduction of the protected area—quite the contrary, its protection is expanded—but also because what is established is a minimum area subject to differentiated management (manejo diferenciado), based on the very areas that, under the pre-existing decrees and management plans (planes de manejo), were already devoted to sustainable tourism and to promoting and developing sites of historical, architectural, and environmental interest. It is enough to verify the legal and actual status of the area at that time.

It is reiterated—and was duly established at the hearing in this proceeding, held on 4 de mayo—that, under our legislation, the park category is higher than that of a national wildlife refuge. Thus, in the case under review, the property already belongs to the State, which retains full title to it, and the elevation of its category or management area (área de manejo) in no way diminishes the scope of its protection or affects third parties. Accordingly, this is not the same situation as, for example, the Refugio Nacional de Vida Silvestre Ostional addressed in judgment no. 2022-22606, where environmental protection was reduced because of delisting (desafectación), through a change from a public-property regime to a mixed regime with the inclusion of private property. With respect to the delisting or reduction of protected areas (zonas protegidas), this Court does not depart from its position that a specific prior study is required.

But this case is entirely different; on the contrary, there is no delisting, but rather greater protection. Indeed, the management plan (plan de manejo) prepared by SINAC, which was already available for 2020 and is based on the various technical studies cited therein, had already noted the need to protect certain areas more closely, the possibility of establishing other uses in other areas, and the unavoidable need to establish essential services within the zone. Although it is true that point 6 of the Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas provides as follows: “Having analyzed the regulations in force, the objectives underlying the creation of the protected wildlife area (área silvestre protegida, ASP), the geographical and ecological context, zoning, and opportunities for sustainable and socioeconomic development, it may be concluded that the wildlife area declared a national refuge is properly categorized,” it must be taken into account that, as indicated in point 7 thereof, that Plan was prepared on the basis of the regulatory and institutional framework existing at that time and demonstrates a need for interinstitutional collaboration in light of the insufficiency of its own technical and material resources, which the Plan itself acknowledges.

In any event, the foregoing does not preclude finding that the 2012 Plan, updated in 2020, constituted a technical basis that did make it possible to determine the condition of the area in question and potentially project greater and better environmental protection, which is consistent with the category conferred by this law. It is therefore untrue that the legislators lacked any technical basis at that time for the decision adopted. Such a basis already existed and supports the legislative decision now adopted; what does not exist in this case is evidence indicating that environmental damage is occurring or that the environment would be placed at risk because its protection category was elevated. In that regard, as the legislators stated at the time, there is no indication that this law has caused any diminishment of or environmental risk to the protection of this area. Far from it, under this categorization, a new management plan may strengthen the environmental protection it already enjoyed; that plan, it bears repeating, would likewise have to include all the requisite technical studies, not only environmental studies but also those intended to protect the historical heritage, with the proper and mandatory participation of the authority competent for such purposes.

This would not occur if the law were annulled, because doing so would inevitably reduce the area’s protection by returning it to its previous status and leaving its custody solely in the hands of SINAC, with the risks identified in the grounds advanced in support of this law. Under those circumstances, far from promoting enhanced environmental protection, this jurisdiction would reduce it based strictly on substatutory regulatory provisions, which is not reasonable under a systematic interpretation of the legal system and constitutional protection. Consequently, both claims of error are rejected.

VIII.REGARDING THE CHALLENGE TO THE EXISTENCE AND DELIMITATION OF A TOURISM-USE ZONE (ZONA DE APROVECHAMIENTO TURÍSTICO) ON ISLA SAN LUCAS. The petitioners contend that Articles 3 and 16, as well as the entirety of law no. 9892, allow a wildlife refuge to be transformed into a park with a tourism zone, where docks, berthing facilities, food services, and various maritime facilities will be authorized, all on an open-ended basis (numerus apertus), as though it were a kind of amusement park, thereby undermining the objectives of conservation areas (áreas de conservación) and causing noise pollution in the marine ecosystem from the engines of launches and boats arriving at the site, as well as light pollution, oil and fuel pollution, impacts on the seabed in wetlands, sedimentation, and impacts on reefs. They maintain that the proposed tourism and commercial use is incompatible with a national park and that Articles 3 and 6 of law no. 9892 established a tourism zone subject to differentiated management (manejo diferenciado), despite the absence of studies justifying its creation.

First, it should be noted that, before the enactment of this law, Isla San Lucas had already been declared in Article 2 of decree no. 34282-TUR-MINAE-C, reviewed in judgment no. 2010-13099, to be “a matter of national interest and high priority for the sustainable tourism development of the island under the terms of this decree, as well as for the conservation and restoration of the buildings of the former penal colony on Isla San Lucas. Agencies of the Public Administration and the Private Sector may, within the respective legal framework, contribute financial resources to the extent possible and without prejudice to the fulfillment of their own objectives, in order to support the sustainable tourism development of Isla.” This is repeated in Article 2 of the challenged law: “The sustainable tourism development of the island under the terms of this law, as well as the conservation and restoration of the buildings of the former penitentiary on Isla San Lucas, are hereby declared matters of national interest and high priority.

Agencies of the Public Administration and the private sector may, within the respective legal framework, contribute financial resources to the extent possible and without prejudice to the fulfillment of their own objectives, in order to support the sustainable tourism development of the island.” The difference is that, beyond that decree, the law challenged here establishes an area with greater protection in the also-challenged Article 3 by declaring 462 has a national park and permitting a differentiated management plan only in the much smaller remaining area, which would be devoted to sustainable tourism activities and the promotion and development of sites of historical, architectural, and environmental interest, while retaining the same Refuge status it already held. According to the evidence entered in the legislative record, those areas were duly identified and updated with the Instituto Geográfico Nacional.

For those purposes, and with regard to tourism activity, Article 5 of that decree provided that, for the development of tourism activities in the area under municipal administration and the preservation of the island’s cultural heritage, ICT would prepare a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible), which would include an environmental impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve the objectives of economic, social, and environmental development, as well as protection of the cultural heritage in that specific area. This Court reiterates the holding of judgment no. 2010-13099, which stated in this regard:

“…IX.- Regarding the implications of sustainable development and tourism.- The cornerstone of development is environmental sustainability, whose objective is to protect and conserve the environment and its natural resources in balance with economic diversification and improvements in the quality of human life. The central idea underlying the principles of environmental law is the rational use of natural resources, together with environmental protection, to ensure sustainability for present and future generations. Every economic or productive activity that affects or uses the environment must adhere to the philosophy of sustainable development according to its environmental impact; in that regard, because the Executive Branch relies on objectives of this kind for economic and social development, this Chamber finds that rural tourism, as such, must adhere to the values that protect sustainable development, since it cannot be exempt from them, and that controlling the effects it may have on the environment is constitutionally relevant.

One example is the Certification for Sustainable Tourism (Certificación para la Sostenibilidad Turística) issued by the Instituto Costarricense de Turismo, which is a highly important component and demonstrates progress in protecting the right to a healthy and ecologically balanced environment while also promoting economic diversity; this measure creates incentives for enterprises engaged in the tourism-based use of natural and cultural resources. Moreover, Ley No. 8724, which is the Ley de Fomento del Turismo Rural Comunitario, seeks to provide benefits to families and communities by using their localities as tourism destinations, and its provisions include Article 2(a), which states: “Make optimal use of environmental resources, which are a fundamental element of tourism development, while maintaining essential ecological processes and helping to conserve natural resources and biological diversity.” In this regard, the Código Ético Mundial para el Turismo, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the OMT in Santiago de Chile, el 27 de diciembre al 1 de octubre de 1999, and adopted by the United Nations General Assembly in resolution A/RES/56/212 del 21 de diciembre de 2001, provides that:

“Article 3.

Tourism, a factor of sustainable development 1. All stakeholders in tourism development have a duty to safeguard the environment and natural resources with a view to achieving sound, continuous, and sustainable economic growth capable of equitably satisfying the needs and aspirations of present and future generations.

2. National, regional, and local public authorities shall favor and encourage all forms of tourism development that make it possible to conserve scarce and valuable natural resources, particularly water and energy, and to avoid waste production insofar as possible.

…

4. Tourism infrastructure shall be designed and tourism activities shall be planned in such a way as to protect the natural heritage constituted by ecosystems and biological diversity and to preserve endangered species of wild fauna and flora. Stakeholders in tourism development, particularly industry professionals, must accept the imposition of limitations on their activities when those activities are conducted in particularly vulnerable areas: desert, polar, or high-mountain regions, coastal areas, tropical forests, or wetlands suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and rewarding forms of tourism, provided that they respect the natural heritage and the local population and remain within the carrying capacity (capacidad de ocupación) of tourism sites.” For equitable access to development, the traditional notion that development occurs only in urban areas must be abandoned, since other factors that make a place unique can be harnessed in rural areas, while ensuring, of course, that those conditions are not threatened. There is no doubt that the utilization of natural resources entails economic diversity; accordingly, the environment requires protection so that it can withstand the burdens of human intervention. It is therefore necessary to ensure reasonable development in balance with the environment, such that the degree of control exercised would increase according to the impact that development may have upon it.

Consequently, tourism development must not entail the destruction of public-domain property (bienes del dominio público) or the surrounding environment, because it depends on their preservation to achieve the economic advancement of rural communities within the parameters of sustainability. The constitutional purposes of the State include developing policies that reduce social and economic disparities, adapted, of course, to natural, rural, or mixed environments; all of this arises from the provisions of Article 50 of the Constitution. Access to development, in terms of employment opportunities or quality of life, and therefore economic progress, forms part of the recognition and advancement of human rights. Thus, rural development through tourism should not require individuals to abandon their traditional customs and ways of life in order to migrate to cities, but rather to adapt them to present-day needs and advances.

In this regard, in the Chamber’s view, humanity’s true challenge is to generate progress and—why not—happiness, both material and spiritual, without threatening the resources available in the environment; the contrary would simply result in social inequalities that prevent progress toward a new stage of human development. The Chamber recognizes that the balance between the two is very delicate, but to achieve it without degrading the environment, science and technology must be used to determine the burdens that particular natural environments and their resources can withstand without infringing the rights of present and future generations. For all these reasons, the conflict between environmental protection and other rights derived from it, which are widely recognized in international human-rights instruments, warrants these considerations by this Constitutional Court. This Chamber considers that rural development based on tourism focused on natural and cultural heritage is constitutionally legitimate provided that it is sustainable.

Hence, if science and technology support imposing certain limits on the number and size of visitor groups, during particular periods, and so forth, such limits could not be deemed unconstitutional, since they are based on sustainability criteria, without disregarding the various international provisions safeguarding the right to enhance the value (puesta en valor) of property belonging to the nation’s history, not only as national heritage property but as the heritage of all humanity; restricting access to such property by local populations is not legitimate.

X.On the protection of the surroundings and landscapes of natural and cultural heritage.- This Constitutional Court has derived environmental rights and principles from Articles 7, 48, 50, and 89 of the Constitution and the aforementioned International Treaties, while also recognizing the State’s need to contribute through policies that promote economic diversity as well as the conservation and protection of cultural and natural property, because without both, equitable human progress for all social sectors could not be understood to exist. Environmental protection, economic diversification, and quality of life are legitimate State objectives, given its duty to implement urban and rural development policies. However, the type of progress pursued in a rural environment must depart from a centralized development model that assumes development can occur only in urban areas, when instead it must capitalize on particular characteristics and address other specific needs.

Rural development based on tourism must rest on other particular foundations, one of which legal scholarship identifies as the conservation of the inherent values of rural areas. This principle is based on the requirement that rural areas be sustainably conserved. In this regard, forests, the sea, mountains, volcanoes, mangroves, wetlands, and so forth provide different types of development settings corresponding to the various interests that may exist. Each constitutes a scenic value subject to constitutional protection. However, the task of targeting and promoting this type of rural development policy falls within the constitutional functions of the Legislature and the Executive Branch. This Chamber must emphasize that conserving the distinctive characteristics of rural environments and natural or scenic surroundings is a value embodied in Article 89 of the Constitution that requires protection.

Such protection must extend to the surroundings that enhance their value, not only as rural areas but also as tourist destinations, so that neighboring communities may experience the positive effects. In this regard, Article 35 of the Ley Orgánica del Ambiente provides that:

“The creation, conservation, administration, development, and oversight of protected areas (áreas protegidas) shall have the following objectives:

a…

…

• f)To protect the natural and scenic surroundings of historic and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.” The Political Constitution identifies not only the protection but also the conservation and development of the Nation’s historical and artistic heritage as legally significant objectives. In the dictionary of the Real Academia Española, “to protect” has the following meanings: 1.- To safeguard, favor, defend; and 2.- To shield a person, animal, or thing from harm or danger by placing something over or around it, etc. For its part, “to conserve” means: 1. To maintain something or ensure its permanence; 2. To keep someone alive and unharmed; 3. To continue the practice of customs, virtues, and similar things; 4. To safeguard something carefully, among other meanings.

And “to develop,” in the applicable sense, means to expand or increase something of a physical, intellectual, or moral nature. Consistent with the foregoing, the Law recognizes as legitimate objectives the creation, conservation, administration, development, and oversight of protected areas containing historic, architectural, or archaeological sites or centers. This means that, in managing cultural resources, human intervention is permitted for the maintenance, safeguarding, preservation, and care of property located in their surroundings, while development promotes the restoration and enhancement of sites of interest that may exist at the location and in its vicinity. Property of cultural interest requires protection and conservation measures in its setting so that it may be distinguished as a tourism resource; otherwise, the State’s omission would constitute unlawful abandonment from a constitutional standpoint and in light of the international treaties in force in the Republic.

Furthermore, conservation entails ensuring protection and permanence within the context of the values and customs inherent in urban and rural areas, and sustainability criteria and practices must therefore be accepted. The administration and development of the property must be protected, and the property must be enhanced in accordance with the characteristics of its environment. Thus, where human-made infrastructure is involved, technical management will be required, including maintenance and investment measures to ensure both its development when it is enhanced and its conservation. In the case of Isla San Lucas, subsection f) of section 38 of the Ley Orgánica del Ambiente applies insofar as the island contains not only elements of natural heritage, but also, as a site with historic and archaeological buildings, elements that are important to national culture and identity. Accordingly, it is important to cite the Código Ético Mundial para el Turismo, which provides:

“Article 4 Tourism, a factor in the utilization and enrichment of humanity’s cultural heritage Tourism resources belong to the common heritage of humanity. The communities within whose territory they are located have particular rights and obligations with respect to them.

Tourism policies and activities shall be conducted with respect for artistic, archaeological, and cultural heritage, which they must protect and transmit to future generations. Particular attention shall be paid to the protection and rehabilitation of monuments, shrines, and museums, as well as places of historical or archaeological interest, which should be widely open to tourist visits. Public access to privately owned cultural property and monuments shall be encouraged with full respect for the rights of their owners, as shall access to religious buildings without prejudice to the requirements of worship.

Resources generated by visits to sites and monuments of cultural interest should preferably be allocated, at least in part, to the maintenance, protection, improvement, and enrichment of that heritage.

Tourism activity shall be organized in a manner that permits the survival and flourishing of traditional cultural and artisanal production, as well as folklore, and that does not lead to their standardization and impoverishment. (emphasis in bold is not in the original).

Costa Rican legislation only sparsely regulates the possible administration of these historic sites, but the isolated provisions establish protection for natural and scenic surroundings, which permits human intervention for the purpose of improving such places, not destroying or abandoning them. The Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, Ley No. 7555 provides that:

“Article 9. Obligations and Rights The designation (declaratoria) of real property as a monument, building, or historic site entails the following obligations for the owners, possessors, or holders of rights in rem (derechos reales) over the property so designated:

To adequately conserve, preserve, and maintain the property.

...

• j)[…] The State and the respective municipality shall have the right to expropriate the property; they may exercise that right for the benefit of other public entities. This right extends to property that threatens environmental harmony or poses a risk to the conservation of property declared to be of historical-architectural interest.

The Executive Branch and the respective municipality shall be required to prevent the total or partial demolition of a protected building. They shall ensure that the use of protected property does not impair its conservation and is consistent with the property’s particular characteristics. In all cases, such use shall not conflict with morality, good customs, or public order.” (emphasis in bold is not in the original) The Chamber also considers it important to note that Articles 71 and 72 of the Ley Orgánica del Ambiente clearly define the foregoing:

“Article 71.- Visual pollution. Actions, works, or installations that exceed the maximum permissible limits established by current or future technical standards, to the temporary or permanent detriment of the landscape, shall be deemed visual pollution.

Article 72.- Landscape conservation. The competent authority shall encourage the public and private sectors to participate in landscape conservation.

When carrying out a project requires affecting the landscape, the resulting landscape shall be of at least the same quality as the previous one.” From the foregoing arise not only the purposes of conservation, preservation, and development, but also the principle of sustainability in the use and development of artistic, archaeological, and cultural heritage assets, so as to enrich their surroundings by enhancing their scenic beauty and to provide access to and safety for property and persons, as advised by the technical and scientific standards applicable to the respective fields. Moreover, coupled with the need for the rehabilitation, restoration, maintenance, and oversight of activities are, ultimately, the social and economic benefits for the many sectors that will depend on this activity…” Similarly, Article 7 of the challenged law provides:

“ARTICLE 7-Scope and restrictions. Parque Nacional Isla San Lucas shall be governed by a master plan (plan maestro) prepared on the basis of technical criteria.

For purposes of fulfilling the objectives established in this law, concessions and permits may be granted in the tourist zone for activities and facilities other than park services. Lodging and gambling services shall not be permitted in this zone.

In all cases, the participation of local organizations in the granting of concessions shall be encouraged.

Any jurisdictional dispute shall be resolved by the Minister of Environment and Energy.” It should be noted that, under Article 5 of the decree upheld by this Court and delimited under those conditions, the development of tourism activities in the area under municipal administration and the preservation of the island’s cultural heritage depended on the Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible) to be developed by the ICT. In this case, the law likewise establishes a Master Plan for the entire national park and a differentiated management plan (plan de manejo diferenciado) for the sustainable tourism area, which is currently defined on a technical basis by a Board of Directors. Thus, Law No. 9892 does not introduce a new declaration that sustainable tourism development on Isla San Lucas is of national interest and a high priority, as challenged by the petitioners, but instead repeats what was previously prescribed in Executive Decree No. 34282. Furthermore, as already indicated, in Judgment No. 2010-13099 this Court cautioned that the mere fact that the law provides for the possibility of carrying out certain sustainable tourism activities and developing certain infrastructure does not necessarily constitute a violation of the environment or of cultural or natural heritage, subject to certain conditions:

“…Infrastructure development must be compatible with the principles of environmental sustainability and with its protection and conservation; conversely, works undertaken without regard for the protection regimes in force on the Island, such as the construction of large-scale infrastructure projects, would be constitutionally questionable, given that the applicability of the protected-area regime would entail a substantial land-use change (cambio de uso del suelo), unlike human-made structures that existed long before the Island was declared a Protected Wildlife Area (Área Silvestre Protegida) and part of the historical and architectural heritage. Accordingly, the Chamber does not consider Articles 2, 3, 4, 6, and 7 of Executive Decree 34282-TUR-MINAET-C to be constitutionally defective, provided that they are understood subject to the following qualifications. The declaration referred to in Article 2, to the effect that sustainable tourism development is of national interest and a high priority, shall be understood as constitutional insofar as the conservation and restoration of the former prison buildings and those constructed in connection with its operation remain confined to work involving the conservation, protection, and improvement of their surroundings.

The same must apply to the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies to which they must be subjected. As for infrastructure intended for tourist use, it must be strictly limited to the areas encompassing the historical complex, the road leading to Playa Cocos, and Playa Cocos itself. The facilities to be constructed must be strictly necessary to meet the basic needs of visitors and tourism-development stakeholders, without this implying that development may extend to projects incompatible with a ‘green’ philosophy or inconsistent with the site’s carrying capacity, all of which must be ensured sustainably in accordance with science and technology. This Court recognizes that achieving the conservation and recovery of the Island’s buildings, as well as enhancing their value—including, for example, the wooden houses located in the place known as ‘Las Jachas’ and its surroundings, the Infirmary, the Chapel, the Administration Building, and other infrastructure necessary to provide limited nature-tourism and ecotourism services—is a genuine challenge, provided that sustainability criteria are met; otherwise, this would create a conflict of constitutional significance with Articles 50 and 89.

Subsections a) and b) of Article 5 shall be understood as constitutional insofar as the objectives of the Master Plan conform to what has been stated by this Chamber, particularly to the extent that the zoning studies and zoning regulations are not based on reducing the protected wildlife area by 5.5% of its area” (Emphasis not in the original.)

SINAC itself and the Ministerio de Cultura y Juventud had already established the need to carry out certain interventions to the infrastructure of Isla San Lucas in the 2020 General Management Plan (Plan General de Manejo) for the Refugio Nacional de Vida Silvestre Isla San Lucas:

“2.1 Cultural resources assessment Report CICPC-DI-0126-2020 of the Ministerio de Cultura y Juventud states that the area of the former prison complex and all its buildings must be kept as intact as possible. It would be desirable to restore the Antiguo Dispensario so as to prevent it from meeting the same fate as the Island’s other wooden buildings; to carry out targeted interventions on the dock—which requires complete repair of the slab and beams, as well as load-support testing of the columns to determine whether reinforcement is necessary. Any other intervention performed on the dock must be reversible and must not damage the existing structures in any way. It is important to intervene in the bastions of the entrance module and the bridge connecting them, since they are at risk of collapse, and to make minor repairs to the cobblestone paving of the ‘Calle de La Amargura’ to prevent its degradation and eventual irreversible deterioration.

In the area with the greatest concentration of historic buildings, we recommend making no major alterations to either the landscape or the buildings, except those necessary to prevent their collapse. In the case of the Antigua Comandancia—which unfortunately disappeared as a result of a fire—we consider its reconstruction important because, as the nerve center of the former prison, it served as the focal point and an essential point of reference within the complex. Fortunately, detailed plans showing its former appearance also exist; moreover, that location is ideal for a future visitor welcome and reception area with the appropriate comforts and necessary amenities. We consider its reconstruction desirable to avoid erecting another new building that would alter the site and detract from appreciation of the complex, with the reconstruction adhering as closely as possible to its appearance before the fire.

The cellblock area—whose structural reinforcement is about to begin—must, insofar as possible, be maintained in its current condition, with only the repairs necessary to prevent its disappearance. We do not, however, recommend undertaking major restoration or reconstruction work, as this would entail the loss of its historic fabric and valuable murals, which reflect an important period in the site’s history.

In general, preventive measures are recommended to avoid the disappearance of the remaining vestiges, but we do not recommend reconstructing what has already disappeared, and we request that no new structures be built in areas immediately adjacent to the vestiges that remain, so as to prevent further deterioration.

Given that the Island is very extensive and the area designated as historical and architectural heritage is relatively small, it is therefore recommended, insofar as possible, that all new construction be located away from the historic area of the former prison and that alterations to its immediate landscape be avoided (…)

4.9.2 Specific infrastructure management plan Efficient management of the Protected Wildlife Area (ASP) will depend on its having all the necessary physical facilities identified in the General Management Plan (PGM) and in the various specific plans or management programs. Infrastructure includes, for example, visitor-service facilities, staff housing, offices, ranger stations, trails, signs, and other facilities.

The primary objective shall be ‘to have optimal and properly equipped infrastructure for managing the area’ (SINAC, 2016).

The ‘Methodological Guide for Preparing Specific Infrastructure Plans in SINAC Protected Wildlife Areas’ must be applied in preparing it.

4.9.3 Specific equipment and infrastructure maintenance plan This plan promotes the establishment of efficient, regular, and systematic maintenance for ASP equipment and infrastructure as a tool capable of ensuring their proper operation and useful life in accordance with the applicable manufacturing or construction specifications, as well as periodic inspections to assess their condition.

An inventory of the equipment and existing infrastructure in the ASP must be included in order to determine the degree of implementation of the activities intended for their maintenance.

The primary objective shall be ‘the preventive maintenance of the ASP’s infrastructure and equipment so that they remain in good condition and functional’ (SINAC, 2016).” Although the challenged Article 3 provides that there shall be a differentiated management area dedicated to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest—which shall for all purposes be known as the Tourist Zone, with its areas defined in Article 6 of the same legislation—it is also true that, as already explained in recital V (considerando V), the management plan approved by SINAC in 2020 already contemplated such uses in those areas, according to the zone classification set forth in section 4.7 (high, medium, low, or minimal or no intervention). For example, the high-intervention zone states as follows:

“…This zone includes part of the marine area of Bahía San Lucas; the infrastructure of the former Presidio; Playa Cocos and Playa Tumbabotes; the Sendero a Playa Cocos, Sendero a Playa Tumbabotes, Sendero al Corral de Piedra, Sendero a la Antigua Porqueriza, Sendero a Playa El Inglés, Sendero a Playa Hacienda vieja, Sendero a Playa Bella vista, Sendero a Punta de Oro (Punta El Coco), Sendero Los Ceibos, Sendero Mirador de Islas, and Sendero El Trogón; as well as the two sites for Prevention, Protection, and Control infrastructure to be located in Tumbabote and Hacienda vieja. It also includes the sites of the Teca plot and the new Guardaparques house.

This zone covers an area of 27 Ha., corresponding to 6.1% of the refuge’s territory.

The following are permitted in this management zone:

* Recreational and tourism activities: guided walks along authorized trails for observing flora, fauna, and historical resources; noncommercial photography and video recording.

* The construction of visitor-service infrastructure (for example, visitor centers, restroom facilities, trails, observation points, platforms, a cafeteria, and handicraft shops).

* The construction of infrastructure for the administration of the Refuge.

* Scientific research and monitoring authorized in accordance with binding regulations.

* The management of flora and fauna species for biological restoration purposes is permitted, based on scientific knowledge and intended to fulfill the conservation objectives of the protected wildlife area (Área Silvestre Protegida, ASP), subject to prior authorization by SINAC.

* The installation of equipment and structures of scientific interest or for management of the Refuge is permitted, subject to prior authorization by SINAC.

* Filming and photography for scientific purposes and for disseminating information about the attributes and values of the ASP are permitted.

* The installation and operation of nonessential services approved under the regulations in force are also permitted in this zone…” In any event, the boundaries of the tourism zone established in the island’s Master Plan and the permitted uses must likewise receive prior approval from the respective technical bodies.

Accordingly, sections 2, 3, 4, 6, 7, and 16 of Law No. 9892 are not unconstitutional, since any tourism or infrastructure-related activity authorized in the Master Plan must be supported by the respective technical criteria of the competent bodies, pursuant to the final paragraph of Article 9 of that law, and must comply with the conditions set forth above in Judgment No. 2010-13099, under which the infrastructure to be built must be strictly necessary to meet the basic needs of visitors and tourism-development agents, without allowing it to extend to developments that are incompatible with a “green” philosophy or inconsistent with the site’s carrying capacity, all of which must be ensured sustainably in accordance with science and technology.

IX. REGARDING THE PETITIONERS’ CHALLENGE CONCERNING THE COMMERCIAL PURPOSES OF THE CONTESTED LAW

The petitioners consider the contested law unconstitutional because it authorizes commercial purposes to be pursued in the tourism area, which is incompatible with sections 8.15 and 12 of the Ley del Servicio de Parques Nacionales and with Article III of the “Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de américa”.

Article 9 of the law in question does indeed include among the powers of the Junta Directiva del Parque Nacional Isla San Lucas the power to “[d]efine environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island.” However, “commercial” activities must be understood within the context of the law as a whole and not in isolation, because the law in question does not refer to commercial purposes in the broad sense, nor does it introduce anything new in that field. As already shown above, under the regulations predating the contested law, the Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas already provided for tourism-related purposes in part of the island’s zone, accompanied by the provision of essential and nonessential services. In this zone, Law No. 5469, which was in force when the contested law was enacted, already authorized the Municipalidad de Puntarenas to use the island as a tourism center; for that purpose, it had been authorized to contract for the necessary infrastructure works, operate the island itself or through public tender, and allow the operation of hotels and all activities associated with a well-organized tourism operation.

By contrast, the contested law expressly prohibits lodging services on the island and, in Article 20, specifically repeals Articles 2 through 8 of Law No. 5469, which authorized the foregoing. Accordingly, it bears repeating that, far from introducing and authorizing any tourism-related undertaking, such as commerce, as the petitioners claim, the contested law establishes by statute—and not by decree, as Decreto Ejecutivo No. 34282-TUR-MINAE-C subsequently did with respect to Law No. 5469—the limits on the works and uses that may be authorized on the island, specifically linking them to environmentally sustainable use. Let us examine Article 5 of Decreto Ejecutivo No. 34282-TUR-MINAE-C, which was in force when Law No. 9892 was enacted:

“Article 5º-For the development of tourism activities in the municipal administration area and the preservation of the island’s cultural heritage, ICT shall prepare a Sustainable Tourism Development Master Plan, which shall include an environmental impact analysis and the technical standards necessary to achieve the objectives of economic, social, and environmental development, as well as the protection of the cultural heritage of that specific area. The Sustainable Tourism Development Master Plan shall contain at least the following elements:

• a)A zoning study defining land uses.
• b)Zoning regulations (ordinances and regulations) defining and establishing the criteria and standards governing land use, construction and use of buildings, facilities, public utilities, buffer zones, among other matters, as necessary for limited and sustainable tourism development and for the protection of the island’s cultural heritage.
• c)A strategic plan for project implementation, establishing programs, projects, and activities to be undertaken through both private initiative and public investment in the interest of sustainable development and the protection of cultural heritage.

The Sustainable Tourism Development Master Plan shall be submitted to the Secretaría Técnica Nacional Ambiental of MINAE and to the Ministerio de Cultura, Juventud y Deportes for approval, in accordance with the requirements and procedures established by the legal system.

The municipal administration area shall be governed by the aforementioned Sustainable Tourism Development Master Plan, and the Refuge Management Plan shall not apply to it, except for the relevant general legal rules. MINAE shall adjust its Management Plan to reflect the refuge’s new boundaries and the Sustainable Tourism Development Master Plan.” In this case, the law not only clearly separates the areas that will receive greater environmental protection than they currently have, in accordance with the prior technical criteria established in the 2020 Management Plan prepared by SINAC, but also makes tourism activity and all related matters subject to the existence of a Master Plan that must be approved on the basis of technical studies and that will define those services, including the commercial activity required solely for those purposes. Consequently, there is no violation of environmental principles, because anything that may ultimately be established must first be supported by the respective technical criterion.

The concept of commerce may not be taken out of context from the remainder of the law’s content, as the petitioners do, because that concept is strictly subject to the purpose of Law 9892; accordingly, it encompasses only such commerce as is necessary for limited and sustainable tourism development and for the protection of the island’s cultural heritage, which even already exists in some of our national parks (restrooms, cafeterias, and handicraft sales, for example). The remainder of the contested law’s provisions limits it accordingly:

“ARTICLE 7-Scope and restrictions. Parque Nacional Isla San Lucas shall be governed by a Master Plan prepared on the basis of technical criteria.

To fulfill the purposes established in this law, concessions and permits may be granted in the tourism zone for activities and facilities other than park services. Lodging services and gambling shall not be permitted in this zone.

In all cases, the participation of local organizations in the granting of concessions shall be promoted.

Any jurisdictional dispute shall be resolved by the Minister of Ambiente y Energía.” “ARTICLE 9-Duties and powers. The Junta Directiva del Parque Nacional Isla San Lucas shall have the following powers:

… d) Define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island…

… With respect to the conservation and preservation of historical and architectural heritage, the criterion of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail; for the protection of wildlife and conservation of the island’s biodiversity, the technical criterion of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail. At the request of the Board of Directors, those entities shall provide their criteria as expeditiously as possible.” As previously indicated, in Judgment No. 2010-13099 this Court had approved the provision of certain nonessential services under specified conditions:

“…In addition to the foregoing, Isla San Lucas is intended to be used as a tourism center providing financial benefits to various social-welfare institutions.

Infrastructure development must be compatible with the principles of environmental sustainability and with environmental protection and conservation; otherwise, works undertaken without regard for the protection regimes in force on the Island, such as the construction of large-scale infrastructure, would be constitutionally questionable, given that the regime’s status as a protected area would entail a substantial land-use change (cambio sustancial al uso de suelo), unlike the human-made structures that existed long before the Island was declared a Protected Wilderness Area (Área Silvestre Protegida) and historical-architectural heritage site (patrimonio histórico-arquitectónico). Accordingly, the Chamber does not find that Articles 2, 3, 4, 6, and 7 of Decreto Ejecutivo 34282-TUR-MINAET-C contain constitutional defects, subject, however, to the following qualifications. The declaration of sustainable tourism development as being of national interest and high priority, as provided in Article 2, must be deemed constitutional insofar as the conservation and restoration of the former prison buildings and those constructed in connection with its operation are confined to work involving the conservation, protection, and improvement of their surroundings.

The same must apply to the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies to which they must be subjected. Infrastructure intended for tourist use must be strictly limited to the areas of the historic complex, the road leading to Playa Cocos, and Playa Cocos itself. Any facilities constructed must be strictly necessary to meet the basic needs of visitors and tourism-development operators, without this allowing expansion into developments incompatible with a “green” philosophy or inconsistent with the site’s carrying capacity; all of this must be ensured sustainably, in accordance with science and technology. This Court recognizes that conserving and restoring the Island’s buildings, as well as enhancing their value—including, for example, the wooden houses in the area known as “Las Jachas” and its surroundings, the Infirmary, the Chapel, the Administration Building, and other infrastructure needed to provide limited nature-tourism and ecotourism services—poses a genuine challenge, provided that sustainability criteria are met; otherwise, Articles 50 and 89 would be implicated at the constitutional level.

Subsections a) and b) of Article 5 must be deemed constitutional insofar as the objectives of the Master Plan conform to what this Chamber has stated, particularly to the extent that the zoning studies and zoning regulations are not based on reducing the protected wilderness area by 5.5% of its total area.” In view of the foregoing, the violations alleged by the petitioners in this regard are dismissed.

X.- - REGARDING THE ALLEGED UNCONSTITUTIONALITY OF LAW NO. 9892 WITH RESPECT TO THE COMPOSITION OF THE BOARD OF DIRECTORS THAT ADMINISTERS PARQUE NACIONAL ISLA SAN LUCAS.

In the petitioners’ view, Article 10 of Law no. 9892 is unconstitutional because, with respect to the composition of the Board of Directors that administers the National Park, the challenged provision does not mandate the participation of technical bodies in a binding capacity.

Since Judgment no. 2010-13099, this Court has cautioned that, if public bodies and entities must fulfill constitutional purposes (Articles 50 and 89) based on their degree of functional specialization, their coordination must be a priority in resolving problems arising in the exercise of their respective powers. In this case, those bodies may include the Ministerio de Ambiente, Energía y Telecomunicaciones, insofar as it oversees natural heritage; the Ministerio de Juventud, Cultura y Deportes, regarding policies for the conservation of historical heritage; the Instituto Costarricense de Turismo, regarding the opening and conservation of historical and naturally beautiful sites for tourism; and the Municipalidad de Puntarenas, regarding the protection of its community’s local interests. Pursuant to Article 8 of Law no. 9892, the Board of Directors of Parque Nacional Isla San Lucas is a body with maximum administrative deconcentration (desconcentración máxima), attached to the Ministerio de Ambiente y Energía and possessing instrumental legal personality (personalidad jurídica instrumental) for the governance and administration of the Park. In the petitioners’ view, the Board’s composition lacks the technical representation needed to ensure the sound approval of its decisions. Let us examine the provision:

“ARTICLE 10—Composition. The Board of Directors of Parque Nacional Isla San Lucas shall consist of the following members:

• a)The Minister of Ambiente y Energía, who shall chair it; a deputy minister of that ministry may serve as alternate.
• b)The Minister of Cultura; a deputy minister of that ministry may serve as alternate.
• c)The Executive President of the Instituto Costarricense de Turismo (ICT); the person holding the position of general manager or a member of that institute’s Board of Directors may serve as alternate.
• d)One representative of the Executive Branch appointed by the Consejo de Gobierno, which shall also appoint an alternate.
• e)The Mayor of the Municipalidad del cantón Central de Puntarenas; a Deputy Mayor may serve as alternate.
• f)The President of the Cámara de Turismo de Puntarenas; any member of that chamber’s Board of Directors may serve as alternate.

The Chair of the Board shall hold judicial and extrajudicial representation of the body. The Chair shall also have a casting vote under the terms of Article 49 of Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978. The members of the Board of Directors shall receive no per diem compensation.” According to the foregoing text, the highest authorities of each ministry and of the municipality concerned are represented on that Board. This is relevant given the particular characteristics of this Island, where three interests protected under the Constitution and international conventions converge: the environment, cultural heritage, and low-impact tourism. There can be no doubt that this is a body of a special nature, in which all sectors involved must be represented and in which technical support is of paramount importance when decisions must be made in these three interrelated fields, particularly in this case. Precisely in recognition of this, the law in question provides as follows:

“ARTICLE 9—Duties and powers. The Board of Directors of Parque Nacional Isla San Lucas shall have the following powers:

• a)To define strategies and policies aimed at consolidating and developing the Park.
• b)To contribute to the environmental protection and conservation of the National Park.
• c)To establish guidelines for the protection, restoration, and administration of historical buildings; to develop facilities and services for visitors’ rest and recreation; to open and ensure the accessibility of land and maritime routes and port facilities; and, in general, to provide all basic services.
• d)To define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the Island.
• e)To approve the strategic objectives for the marketing and promotion necessary to publicize Parque Nacional Isla San Lucas both domestically and internationally.
• f)To approve authorizations, use permits (permisos de uso), and concessions for carrying out works and providing services in the Tourism Zone (Zona turística).

Works involving areas declared to be heritage sites must be coordinated with the Ministerio de Cultura.

• g)To approve the National Park’s Master Plan, as well as the corresponding programs, plans, and budgets.
• h)To approve the administrative structure required for the Park’s institutional management.
• i)To approve, renew, amend, or revoke any trust relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and persons. It shall determine admission prices for the National Park and approve contracts for the various reservation and purchasing systems.
• j)To approve the use of public-works concessions involving public services and mutually beneficial contracting with nonprofit entities.
• k)To undertake any other action necessary to ensure the proper operation of Parque Nacional Isla San Lucas and the attainment of its purposes.

In matters concerning the conservation and preservation of historical-architectural heritage, the opinion of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail; for the protection of wildlife and conservation of the Island’s biodiversity, the technical opinion of the Sistema Nacional de Áreas de Conservación (SINAC) shall prevail. At the request of the Board of Directors, those entities shall provide their opinions as expeditiously as possible” (boldface added).

“ARTICLE 11—Term and organization. The six members of the Board of Directors of Parque Nacional Isla San Lucas shall remain in their positions for as long as they hold the offices that qualify them for membership and, in the case of the Executive Branch representative, for as long as that person is not removed by the Consejo de Gobierno.

The Park’s Board of Directors may validly hold meetings with alternate members participating, even if the principal member’s position is vacant.

Regarding matters not governed by this Law, the structure, organization, and operation of the Board of Directors shall be governed by Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978.” (boldface added).

“ARTICLE 12—Meetings. The Board of Directors shall hold regular meetings at least once a month and extraordinary meetings as necessary, in which case the Chair shall issue the notice convening the meeting.

All meetings of the Board of Directors must be formally documented.

The Board of Directors may invite technical personnel and any other persons needed for adopting resolutions to attend its meetings.” (boldface added).

It follows from the foregoing that the Law reinforces the requirement that the Board’s decisions concerning the conservation and preservation of historical-architectural heritage and the protection of wildlife and conservation of the Island’s biodiversity must be based on technical opinions. To that end, Article 12 cited above provides that technical personnel may be invited to meetings, while Article 9 establishes that the opinions issued by the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura and SINAC within their respective fields shall prevail. Nevertheless, as the petitioners point out, requesting such a technical opinion is optional for the Board, which could jeopardize environmental protection in cases where no opinion is requested. In this regard, it is relevant to note what this Court unanimously held on this specific issue in Judgment no. 2022-25307, at 13:40 on 25 de octubre de 2022:

“…it is the Chamber’s view that the legislature has broad discretion in creating and assigning administrative powers. This entails discretion in determining the administrative bodies responsible for performing a particular function in relation to a specific subject matter. Thus, the mere assignment of a particular power to a different body does not, in itself, constitute a violation of constitutional law. However, where the right to environmental protection is concerned, as a consequence of the preventive and precautionary principles, a technical or scientific power aimed at establishing environmental viability (viabilidad ambiental) or the impact of a particular activity or project on the environment, or, in general, determining the type of technical-scientific instrument to be used in assessing such effects on the environment and ecosystems, must be assigned to a technical body and not to one that is predominantly political in nature.

This is because the weighing and analysis of such matters require and demand that the authorization or denial of such viability be supported by technical considerations. Although political bodies may establish programmatic guidelines concerning such matters, ultimately, the practical application of the scientific and technical variable entails that functional orientation…” This Court considers that, if the legislature made the technical opinions of those technical bodies binding, it must be understood that it intended the input of both, within their respective spheres of authority, always to be requested by the corresponding Board. Otherwise, if this were not mandatory, there would be a serious risk that the purpose of that provision would not be achieved. Accordingly, given the possibility that this provision could be interpreted in the manner asserted by the petitioners and that decisions could be adopted without being supported by specialized opinions, potentially harming the environment or the historical and cultural heritage, and because this is a specially protected area, this Court, in accordance with the precautionary principle (principio precautorio) governing these matters, holds that the composition of the Board of Directors (Junta Directiva) regulated in section 9 is not unconstitutional, provided that the final paragraph of the cited article is interpreted to mean that such an opinion is not optional for the Board of Directors, but must be obtained at all times to support the decisions it adopts concerning the conservation and preservation of the historical and architectural heritage and the protection of wildlife and conservation of the island’s biodiversity, or decisions that may affect those matters.

Those bodies must issue such opinions as expeditiously as possible, and they shall be binding upon the Board. It should be noted that the final paragraph of the recently cited article 9 is categorical as to the status of these technical reports, in establishing that, with regard to the conservation and preservation of the historical and architectural heritage, the opinion of the Centro de Investigación y Conservación del Patrimonio Cultura del Ministerio de Cultura shall prevail, while, with regard to the protection of wildlife and conservation of biodiversity, the technical opinion of the Sistema Nacional de Áreas de Conservación shall prevail. Therefore, these technical opinions clearly may not be disregarded by the Board of Directors; rather, it must necessarily abide by what they state concerning the specified matters.

XI. ON THE ALLEGED UNCONSTITUTIONALITY OF LAW NO

9892 WITH RESPECT TO THE GRANTING OF CONCESSIONS.

In the petitioners’ view, the challenged law is contrary to section 8, subsection 15, of the Ley del Servicio de Parques Nacionales, in relation to section 12 thereof, because national parks are prohibited from granting concessions (concesiones) other than for facilities serving the park itself, and only ecotourism, research, workshops, and possibly the use of water resources are permitted, but not for commercial purposes at piers, docking facilities, and other locations.

With regard to this claim, the Chamber notes that Law No. 9892 provides:

“ARTICLE 7- Scope and restrictions. Parque Nacional Isla San Lucas shall be governed by a master plan (plan maestro) prepared on the basis of technical criteria.

For the fulfillment of the purposes established in this law, concessions and permits (permisos) may be granted in the tourism zone for activities and facilities other than park services. Lodging and gambling services shall not be permitted in this zone.

In all cases, the participation of local organizations in the granting of concessions shall be promoted.

Any jurisdictional conflict (conflicto de competencias) shall be resolved by the Minister of Ambiente y Energía (…)

ARTICLE 9- Duties and powers. The Board of Directors of Parque Nacional Isla San Lucas shall have the following powers: (…)

• f)Approve authorizations, use permits (permisos de uso), and concessions for carrying out works and providing services in the Tourism Zone (…)
• j)Approve the use of public-works concession arrangements involving public services and mutually beneficial contracting with nonprofit entities (…)

ARTICLE 17- Funding. Parque Nacional Isla San Lucas shall have financial resources enabling it to carry out its mandates promptly and efficiently. These shall include the resources allocated to it by law through the Sistema Nacional de Áreas de Conservación (Sinac), transfers from the national budgets, or donations from any natural or legal person, as well as the revenue generated by admission to the park, use of its services, concession and permit fees, and, in general, payments for activities conducted within the park.

The resources governed by this law, as well as all resources generated by the park, shall necessarily and exclusively be invested in the national park itself.

Oversight shall be the responsibility of the Contraloría General de la República (…)”.

For its part, the Ley de Biodiversidad specifies the types of concessions for non-essential services and activities that may be granted within protected wilderness areas (áreas silvestres protegidas).

“ARTICLE 39- Concessions and contracts. The Consejo Nacional de Áreas de Conservación is authorized to approve contracts and concessions for non-essential services and activities within state-owned protected wilderness areas, except for the exercise of responsibilities entrusted exclusively by this and other laws to the Poder Ejecutivo through the Ministerio de Ambiente y Energía (Minae), such as protection and surveillance, and the establishment and monitoring of strategies, plans, and budgets for conservation areas (áreas de conservación). Under no circumstances may these concessions and contracts include authorization for third parties to access elements of biodiversity or exploit natural resources; nor may they include the construction of private buildings.

Non-essential services and activities shall include parking facilities, restroom facilities, management of physical facilities, food services, shops, construction and management of trails, visitor management, and any others defined by the Consejo Regional del Área de Conservación through a supporting technical study.

These concessions and contracts may be granted solely and exclusively to community development associations, cooperatives, microenterprises registered with the Ministerio de Economía, Industria y Comercio (MEIC), or national nonprofit social organizations whose objectives include supporting the conservation of natural resources, that incorporate environmental management (gestión ambiental) into the processes and the concession area, and whose legal status remains valid, provided that they are directly composed of and controlled by residents of communities located within the area of influence of the corresponding protected wilderness area.

Conservation areas shall provide these communities with comprehensive information concerning the services they decide to offer under concession and shall establish a registry of local organizations to ensure the greatest possible participation in contracting processes.

The Instituto Nacional de Aprendizaje (INA), in coordination with other public educational entities and the corresponding municipalities, shall create training and technical instruction programs aimed primarily at communities located within the area of influence of protected wilderness areas, so that they may benefit from this provision.

Concessionaires or permit holders shall submit satisfactory external audits conducted during the preceding year, subject in all respects to the judgment of the Consejo Regional del Área de Conservación.

(As amended by the sole article of Law N° 9766 of October 29, 2019)

(Sinalevi Note: Through the sole article of Law N° 10133 of March 14, 2022, this section was authoritatively interpreted (interpretó auténticamente) to mean that: “…the authorized concessions and public contracts referred to therein may also be granted to the Juntas de Educación y Juntas Administrativas de Centros Educativos Públicos and the Cruz Roja Costarricense, considering that they are local organizations.”)

ARTICLE 39 BIS- Contractual arrangements. For the granting of concessions and contracts for non-essential services and activities within protected wilderness areas, the Administration shall use the contractual arrangements that best serve the public interest, following the ordinary, extraordinary, and special procedures established by law.

ARTICLE 40.- Conformity with plans and strategies. The concessions and contracts authorized in the preceding article shall be based on the strategies and plans approved initially by the Consejo Regional and finally by the Consejo Nacional de Áreas de Conservación, in accordance with established laws and policies. The formulation of strategies and plans for protected areas shall under no circumstances be affected by considerations other than strictly technical ones” (boldface added).

In connection with the cited legislation, reference should be made to the aforementioned judgment no. 2006-9563, issued at 16:06 hours on July 5, 2006:

“IX.- The constitutionality of article 39 of the law in question is also challenged insofar as it authorizes the Consejo Nacional de Áreas de Conservación to approve contracts and concessions, which the petitioner asserts is a power vested exclusively in the President and the corresponding Minister. The challenged article provides:

"Article 39.- The Consejo Nacional de Áreas de Conservación is authorized to approve contracts and concessions for non-essential services and activities within state-owned protected wilderness areas, except for the exercise of responsibilities entrusted exclusively by this and other laws to the Poder Ejecutivo through the Ministerio de Ambiente y Energía, such as the establishment and monitoring of strategies, plans, and budgets for the Conservation Areas. Under no circumstances may these concessions and contracts include authorization for third parties to access elements of biodiversity; nor may they include the construction of private buildings.

Non-essential services and activities shall include parking facilities, restroom facilities, management of physical facilities, food services, shops, construction and management of trails, visitor management, and any others defined by the Consejo Regional del Área de Conservación.

These concessions or contracts may be granted to legal entities with current legal status (personería jurídica) that are nonprofit organizations whose objectives include supporting the conservation of natural resources; priority shall be given to regional organizations.

Concession holders (concesionarios) or permit holders (permisionarios) shall submit satisfactory external audits conducted within the past year; all at the discretion of the Consejo Regional del Área de Conservación.” As indicated above, the Consejo Nacional is attached to the Sistema Nacional de Áreas de Conservación, a body with instrumental legal personality (personalidad jurídica instrumental) and its own budget, precisely because, as already noted, it requires administrative speed and efficiency to fulfill its purposes. Accordingly, it also needs to contract for material and human resources expeditiously in order to perform its functions efficiently. This contracting authority was recognized by the Sala in Judgment No. 2005-3629:

“...From the foregoing, it is clear that this Tribunal had already ruled on the petitioner’s arguments and that, on that occasion, in a holding it continues to uphold, it determined that granting the Consejo Técnico de Aviación Civil instrumental legal status through which it may administer funds and, consequently, enter into contracts, within the terms and limits indicated by this Tribunal, is not unconstitutional. Ownership of assets entails financial autonomy (autonomía patrimonial) and, consequently, managerial autonomy to perform more efficiently the public function entrusted to it. Denying its capacity to enter into contracts, as the petitioner seeks, would be unreasonable, since obtaining funds without the ability to administer them would make no sense, and such administration necessarily entails the capacity to enter into contracts. With financial autonomy, the entity may perform the acts and enter into the contracts necessary to manage those assets, subject to the legal and constitutional limits already established, because, given the nature of certain contracts, they shall be reserved for the President and the corresponding Minister, since this is merely instrumental rather than essential contracting.

Government procurement (contratación administrativa) cannot presently be conceived on the assumption that every contract intended to carry out public administration must be formalized by the President and the corresponding Minister, as the petitioner claims, because that would bring public administration to a standstill, given the growth of the public sector and the needs of those subject to its administration. Regarding this issue, in Judgment No. 2660-01, the Sala addressed the formal rigor of government procurement and stated:

“In the opinion of this Sala, there are a number of elements that cannot be disregarded when analyzing the constitutional validity of the challenged provisions. First, the analysis cannot be simplistic or formalistic, because government procurement is an extremely complex field that operates in an environment of constant and often rapid change. Indeed, the process for acquiring goods and services is immersed in and, at the same time, determined by market conditions and rules, whose variables can scarcely be encompassed by the rigidity of a legal provision. For that reason, and considering that, as the Procuraduría correctly noted, procurement procedures are instrumental in satisfying public interests, they can never become an end in themselves, but must retain their nature as mere means of achieving the higher purpose. Under this reasoning, it is appropriate to ask whether it is feasible for a body of law to anticipate every possible ground (sic) for an exception that might, at a given time, require a procedure such as direct contracting (contratación directa).

The function of a constitutional court, entrusted with discovering, clarifying, and declaring the meaning of the State’s primary legal order, cannot disregard its environment and, in this case, the realities and problems that the State may face in its contracting activities. That perspective must, of course, be kept in proper balance with preserving and defending constitutional supremacy. Therefore, in the difficult task of discerning the logical meaning and spirit of constitutional provisions, those provisions must be placed in context; otherwise, they could become rules of very limited scope or practical effect, lacking contemporary relevance and potentially even preventing the satisfaction of the public interest that the State must pursue.” The law has had to develop mechanisms that provide greater flexibility in contracting, as is the case with the Ley de Administración Financiera de la República, the Ley de Contratación Administrativa and its regulations. The Ley de Administración Financiera y presupuestos públicos, for example, provides in Article 106:

“The heads of public-sector bodies or entities may delegate the execution of contracts associated with the procurement process, in accordance with the regulations established for that purpose.” This, of course, is understood to be an instrumental activity. In the case of the Consejo Técnico de Aviación Civil, that contracting authority is instrumental in nature and is subject to the legal system and, therefore, also to oversight by the Contraloría General de la República.” In this case, the provision itself limits the contracts and concessions that the Consejo Nacional de Áreas de Conservación may approve to services and activities that are not essential: parking facilities, restrooms, administration of physical facilities, food services, shops, construction and administration of trails, visitor management, and others defined by the Consejo Regional del Área de Conservación. The article even indicates that excluded from that contracting authority are matters involving the exercise of responsibilities that this and other laws entrust exclusively to the Poder Ejecutivo through the Ministerio de Ambiente y Energía, such as defining and monitoring strategies, plans, and budgets for the Áreas de Conservación. Consequently, the alleged constitutional violation has not been established” (emphasis added).

Additionally, it should be noted that, in February 2021, SINAC issued “The ABCs of Non-Essential Services and Activities in Protected Wild Areas,” in which it explained:

“Non-essential services and activities (servicios y actividades no esenciales, SANE) are activities such as guide services, food services, and management of visitation in Protected Wild Areas (Áreas Silvestres Protegidas), which national legislation allows third parties to administer under contracts or concessions—that is, a mechanism for fostering public-private partnerships (Alianzas Público Privadas, APP) between the Poder Ejecutivo and civil society. SANE provide opportunities for communities in the area of influence of Protected Wild Areas to benefit from economic activities directly fostered by the establishment and existence of Protected Wild Areas, as well as an effective means of creating sustainable jobs in rural areas, which in many regions also coincide (sic) with areas having the country’s lowest development indices (...)

Before beginning a procurement process for non-essential services and activities, the protected wild area must have a duly officialized technical instrument, which may be the general management plan (plan general de manejo), sustainable tourism plan (plan de turismo sostenible), or any other technical instrument addressing the need to contract out the identified non-essential services and activities (...)

The Technical Study (Estudio Técnico) is the analysis required to provide technical justification for the non-essential services and activities defined by CORAC that are not established in Article 39 of the Ley de Biodiversidad. It also provides technical justification for the feasibility of the non-essential service or activity to be contracted out within the ASP. It must answer the questions: what? when? how much? where? how? with what? and with whom? (...)

Specific Objectives of Non-Essential Services and Activities 1. Strengthen the conservation of ASP. They shall contribute to the purpose for which the ASP were created by applying best practices and promoting the equitable distribution of the benefits generated.

2. Improve tourism management and quality in ASP. The quality of the visitor experience shall be improved and diversified.

3. Institutional strengthening. They shall allow SINAC officials to attend to the essential activities of the protected wild area, as well as improve revenue generation for the System, optimize the institution’s resources, and improve conditions for officials.

4. Contribute to local development. They shall promote local strengthening through the equitable distribution of benefits among communities located in the area of influence of the protected wild area, as well as help strengthen their capacities (...)

Advantages of Granting Non-Essential Services and Activities within SINAC Protected Wild Areas •Allows SINAC to focus on essential conservation and sustainable-use work in ASP.

•Allows public participation by communities located in the area of influence of ASP in their management and in the distribution of their benefits.

•Generates significant financial resources for the protection and development of ASP.

•Improves the operational, administrative, and financial management of ASP.

•Improves the visitor experience within state-owned ASP.” In summary, Articles 39, 39 bis, and 40 of the Ley de Biodiversidad provide that:

• i)The Consejo Nacional de Áreas de Conservación may authorize concessions, as well as the contractual arrangements that best satisfy the public service, for the provision of non-essential services and activities within protected wild areas, except for the exercise of responsibilities assigned to it by law, such as protection and surveillance, and the definition and monitoring of strategies, plans, and budgets for the Áreas de Conservación.
• ii)Concessions and contracts granted for the provision of non-essential services and activities in the Áreas de Conservación do not entail any authorization for third parties: i) to access elements of biodiversity; ii) to exploit natural resources; or iii) to construct private buildings.
• iii)The non-essential services and activities are:

Parking facilities, restrooms, administration of physical facilities, food services, shops, and the construction and administration of trails and visitation.

Those defined by the Consejo Regional del Área de Conservación through a technical study.

• iv)Contracts and concessions for non-essential services may be granted only to:

Community development associations (asociaciones de desarrollo comunal).

Cooperatives.

Microenterprises registered with the Ministerio de Economía, Industria y Comercio.

National nonprofit social organizations whose objectives include supporting the conservation of natural resources, which incorporate environmental management (gestión ambiental) into the processes and concession area (área concesionada), and whose legal status is current, provided that they are composed of and directly controlled by residents of the communities located in the area of influence of the respective protected wild area.

• v)Conservation areas (áreas de conservación) are required to:

Inform communities about the non-essential services that will be granted under concession.

Establish a registry of local organizations to encourage the greatest possible participation in procurement processes.

• vi)The Instituto Nacional de Aprendizaje, in coordination with other public educational institutions and municipalities, shall create training and technical instruction programs aimed primarily at communities located within the area of influence of protected wild areas (áreas silvestres protegidas), so that they may benefit from this provision.
• vii)Concessionaires or permit holders providing non-essential services in protected wild areas must submit satisfactory external audits conducted within the last year, as directed by the Regional Council of the Conservation Area (Consejo Regional del Área de Conservación).
• viii)Concessions and contracts for non-essential public services in protected wild areas must be based on strictly technical strategies and plans approved initially by the Regional Council of the Conservation Area and, definitively, by the National Council of Conservation Areas (Consejo Nacional de Áreas de Conservación).

Furthermore, Ley Forestal establishes a series of activities that are authorized within the State’s natural heritage (patrimonio natural del Estado):

“Article 18—Authorization of activities. Within the natural heritage, the State may conduct or authorize research, training, and ecotourism activities, as well as activities necessary for the use of water for human consumption, pursuant to Article 18 bis of this law, once approved by the Minister of Environment and Energy, who shall determine, where appropriate, whether environmental impact assessments (evaluaciones del impacto ambiental) must be conducted, as established by the regulations to this law.

Article 18 bis Use of water for supplying communities. The Ministry of Environment and Energy (Minae) may authorize the use of water from surface sources and the construction, operation, maintenance, and improvement of water-supply systems on properties forming part of the State’s natural heritage, following a declaration by the Executive Branch that they are in the public interest, specifically to meet an urgent need to supply a community and for the benefit of the authorized public-service providers listed below:

• a)The Instituto Costarricense de Acueductos y Alcantarillados (ICAA).
• b)Municipalities that continue to provide the public drinking-water service under Ley N.º 1634, Ley General de Agua, of 18 de setiembre de 1953.
• c)The Empresa de Servicios Públicos de Heredia (ESPH).
• d)The Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados (Asadas), which are entities formed by users, duly established for that purpose and registered in accordance with Ley N.º 218, Ley de Asociaciones, of 8 de agosto de 1939, may administer and operate their community’s water-supply system under a delegation agreement entered into with the ICAA.

All works or activities necessary to fulfill the purposes established herein must be carried out on the basis of technical studies, seeking to minimize environmental impact as much as possible in accordance with the applicable environmental impact assessment instrument (instrumento de evaluación de impacto ambiental), and in strict compliance with current environmental regulations, particularly the provisions governing the technical criteria applicable to interventions in protected wild areas set forth in Ley N.º 7788, Ley de Biodiversidad, of 30 de abril de 1998, and its regulations.

In the case of protected wild areas under absolute protection, namely national parks and biological reserves, the provisions of Article 38 of Ley N.º 7554, Ley Orgánica del Ambiente, of 4 de octubre de 1995, must also be complied with. Furthermore, the technical studies conducted must demonstrate that no other alternative source is available to ensure an adequate quantity and quality of water for the beneficiary population, and the proposed activities must receive prior technical endorsement from the Instituto Costarricense de Acueductos y Alcantarillados (ICAA).

The service providers identified in this article are authorized to undertake activities involving the use of water from surface sources and any construction, operation, maintenance, and improvements necessary for the community water-supply system for human consumption on lands forming part of the State’s natural heritage that are not within protected wild areas and that were acquired by those providers themselves or by another public-service provider supplying water for human consumption, for the purpose of protecting the water and ensuring that this service is provided to future generations. In such cases, however, the service providers must comply with the other requirements established in this article and in national regulations. The service providers shall continue to administer these lands, which in all other respects shall remain subject to the conditions, limitations, and protections applicable to the State’s natural heritage, as provided in this law.

The Instituto Costarricense de Acueductos y Alcantarillados shall ensure that the ecological flow (caudal ecológico) essential to the functioning of the ecosystem, both within and outside protected wild areas, is not altered, so that it is maintained under a sustainable-use framework. Minae shall be responsible for monitoring it.

Each year, the authorized public-service provider supplying the authorized community must submit to the Sistema Nacional de Áreas de Conservación (Sinac) and the Dirección de Aguas a report on the results of the flow measurements (aforos), given the nature and environmental fragility of protected wild areas.” In addition to the foregoing, the Regulations to Ley Forestal provide:

“Article 11.—On lands previously declared part of the State’s Natural Heritage, both within and outside Protected Wild Areas, only training, ecotourism, and research activities shall be permitted; these activities shall be subject to the management plan (plan de manejo) for the Protected Wild Area and to other regulations established herein, as follows:

A—Within Protected Wild Areas In Protected Wild Areas other than National Parks and Biological Reserves, ecotourism activities may be conducted solely and exclusively in the zones established by the Sistema Nacional de Áreas de Conservación (SINAC), in accordance with the zoning (zonificación) of each Protected Wild Area.

B—Outside Protected Wild Areas On lands forming part of the State’s Natural Heritage that are located outside Protected Wild Areas, all activities established in Article 18 of Ley Forestal may be conducted. The type of activity permitted under each category is detailed below:

The following ecotourism activities may be conducted:

a. Trails or rustic roads.

b. Camping areas.

c. Scenic overlooks.

d. Canopy tours.

e. Climbing a tree that serves as an overlook (tree-based observation platforms, provided the tree is not a breeding site or den for any species).

f. Suspension bridges.

g. Rappelling.

h. Rest areas.

i. Picnic areas.

j. Kayaking and canoeing.

k. Recreational cycling.

l. Fishing (this activity may not be conducted within National Parks and Biological Reserves or within wetlands located in either of those categories).

m. Other activities compatible with the environment and the objectives of this decree.

n. Lodges.

The following research activities may be conducted:

• a)Overlooks for observing wildlife species or for monitoring and protection (solely and exclusively for scientific purposes).
• b)Trails (solely and exclusively for scientific purposes).
• c)Installation of camera traps.
• d)Collection of biodiversity samples, in accordance with Ley de la Biodiversidad N º 7788 and its regulations.
• e)Restoration, improvement, and/or rehabilitation of wetlands and other ecosystems.
• f)Other related and duly authorized activities.

The following activities may be conducted for training purposes:

• a)Demonstration tours.
• b)Ecological classrooms.
• c)Environmental education programs.
• d)Other related and duly authorized activities.

SINAC shall grant use permits (permisos de uso) within the State’s Natural Heritage, and the corresponding Conservation Area Director shall authorize the activities conducted under them. Every approval or denial of a use permit shall be issued through a duly reasoned administrative decision (resolución administrativa). Such a permit may not be assigned, transferred, or donated; it shall be granted on a revocable basis (condición precaria) and therefore shall confer no property right whatsoever over the land, and it may be revoked whenever the State so determines for reasons of expediency, timeliness, or public interest, pursuant to Article 154 of Ley General de la Administración Pública, Ley Nº 6227.

Use permits granted shall remain valid for five years and may remain valid for a longer period when the applicant has legally and technically justified, and the respective Conservation Area has approved, the need for a longer period to carry out the activities, which may not exceed 10 years. In all cases, six months before the permit expires, the respective Conservation Area shall notify the interested party of the expiration of its use permit; for this purpose, the interested party must request the corresponding extension in writing and ensure that the request is entered in the administrative record (expediente administrativo), with the warning that failure to do so shall result in the automatic expiration of the use permit. Extensions may be granted consecutively. Once a use permit has expired, if no request for an extension has been submitted, it shall no longer be valid for the regulated party (administrado), who shall be required to apply for it again and comply with the applicable statutory and regulatory requirements.

Each Conservation Area shall create a duly labeled, chronologically organized, and paginated file for each use permit granted and record each permit in a registry book, stating its date of issuance, the number of the administrative decision approving or denying the permit, the permit’s validity period, the type of permit holder—whether a natural or legal person—and the activity to be conducted.

Every use permit for areas within the State’s Natural Heritage shall be subject to compliance with the following requirements before the corresponding Conservation Area:

1. A written application stating the applicant’s full name, natural-person or legal-entity identification number, address, place or means for receiving notices, telephone number, area of interest, activity to be conducted, and the location of the requested area on a map sheet.

2. A sketch or scale drawing of the area of interest.

3. A certified copy of the natural-person or legal-entity identification document.

4. A preliminary proposal (anteproyecto) for the activities the applicant wishes to conduct.

Once the regulated party has fully complied with the requirements established herein, the respective Conservation Area shall have no more than one month to approve or deny the application.

In addition to the stated requirements, interested parties must comply with the following provisions:

• a)The infrastructure must include facilities that accommodate the needs of persons with disabilities. (Ley Nº 7600) b) Every development must have the necessary equipment and an emergency-response plan.
• c)Outdoor lighting systems shall be aimed toward the ground, and those along access routes (roads and trails) shall be placed at a height of 80 centimeters above the ground, with their beams always directed downward. Under no circumstances shall floodlights directed toward the forest or beach be authorized.
• d)Excavation shall not be permitted, and waste from any construction shall be properly disposed of for removal or elimination.
• e)In duly justified cases, the pruning of branches or the cutting of trees shall be permitted when they pose a danger to persons or local wildlife.
• f)Research activities to be conducted shall comply with the requirements and permits established in the Ley de Conservación de la Vida Silvestre N° 7317 and its Regulations.
• g)The permit holder shall guarantee the integrity of the assigned area by establishing effective control and protection measures and mechanisms, which must form part of the management plan (plan de manejo).
• h)Submit periodic reports on implementation of the plan.
• i)The AC shall assess whether two or three activities may be authorized simultaneously within the same sector or dispersed over time and space in a given territory.

Once the application has been approved by the respective Área de Conservación, the interested party shall submit a Specific Project for the activities to be conducted, together with approval from the Secretaría Técnica Nacional Ambiental (SETENA) regarding environmental feasibility (viabilidad ambiental) or an environmental impact study (estudio de impacto ambiental), as applicable.

Depending on the activity to be conducted, the respective Project shall contain at least the following:

• 1)Ecotourism activity a. Executive summary of the project b. Introduction.

c. Rationale.

d. Objectives e. Assessment and inventory of the natural resources in the area of interest and the surrounding area, f. Development of the project proposal.

g. Tourism carrying capacity (capacidad de carga turística) (when applicable).

h. Feasibility study. Cost-benefit analysis.

i. Site design plan j. Waste-management plan (when applicable) k. Activity schedule 2) Training activity a. Executive summary of the project b. Introduction.

c. Rationale.

d. Objectives e. Development of the project proposal.

f. Waste-management plan (when applicable) g. Activity schedule 3) Research activity a. Preliminary research proposal pursuant to Decreto Ejecutivo Nº 32553-MINAE, published in La Gaceta N ° 197 de 13 de octubre de 2005.

The following cases shall have priority in the granting of a use permit (permiso de uso) on lands within the Patrimonio Natural del Estado, provided that they meet the requirements established in these Regulations:

• a)Companies or natural persons holding a concession agreement granted by the respective Municipalidad, as established by Ley 6043 sobre la Zona Marítima Terrestre, over those lands prior to their transfer to the Patrimonio Natural del Estado.
• b)Companies or natural persons occupying the parcel who have previously taken steps before the respective Municipalidad to obtain a concession agreement or a permit for the use, care, and maintenance of the parcel. For all purposes, they shall provide documentation substantiating that status.
• c)Local residents or organizations.

SINAC shall be the body responsible for setting the amounts of the fees (cánones) according to the activities to be conducted. For the granting of a use permit, it shall charge an annual fee equal to 2% annually of the value of the infrastructure works constructed within the area covered by the use permit and the value of the land, in accordance with the appraisal by the respective Dirección General de Tributación Directa. The fee payable by the permit holder shall be deposited into the Fondo de Parques Nacionales account N° 41220-5 at Banco Nacional de Costa Rica; proof of deposit shall be submitted to the respective Área de Conservación so that it may be entered into the administrative case file (expediente administrativo).

(As amended by article 2° of executive decree N° 35868 del 24 de marzo de 2010)” (emphasis added).

Therefore, the Ley Forestal and its Regulations provide for the possibility of authorizing, through permits, the exclusive use (uso privativo) of the Patrimonio Natural del Estado, granted on a revocable basis (en precario) to private-law persons, for research, training, ecotourism, and access to potable water. However, of relevance to the case at bar (sub lite), it must be noted that this type of authorization may not be granted for ecotourism in national parks.

It should nevertheless be noted that, although national parks are considered categories of absolute protection in which use permits for ecotourism activities may not be authorized, this does not mean that concessions or contracts for the provision of certain nonessential services may not be granted or authorized. Indeed, under the Ley del Servicio de Parques Nacionales, what is prohibited is the granting of concessions for the exploitation of products from national parks, since section 12 provides: “No concessions of any kind may be granted for the exploitation of products from national parks, nor may permission be granted to establish facilities other than those of the Service.” In this regard, it should be noted that several national parks currently have concessions for the provision of nonessential services; for example, Chirripó, Volcán Irazú, and Volcán Poás.

However, the foregoing does not mean that concessions may be granted without restriction in national parks, as the Chamber stated in judgment nro. 2015012955 de las 9:20 horas del 21 de agosto de 2015:

“VII.- Regarding the tendering of nonessential services, the placement of containers and structures in the park, and the absence of permits and authorizations therefor. (…) Indeed, Parque Nacional Manuel Antonio was declared a national park by law Nº 5100. This means not only that the territories it encompasses became part of the Patrimonio Natural del Estado, but also that they are subject to a special protection regime. This regime is clearly evident in the case under examination (sub examine), because the activity contemplated in the tender would ordinarily not require environmental feasibility from SETENA; however, processing such feasibility is unavoidable in this case precisely because the activity is to be conducted in an Environmentally Fragile Area (Área Ambientalmente Frágil). The Chamber was able to establish, based on the parties’ statements, that the authorities responsible for the park allowed containers to enter the park even though the project lacked environmental feasibility and the proceedings before SETENA had not even been formally initiated.

The purpose of obtaining environmental feasibility, whether potential feasibility or a license, is to prevent the project or activity from causing environmental damage, which means that such feasibility must be processed before the project begins (see article 2 of Decreto Ejecutivo Nº 31849, Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental). Accordingly, the fact that the national park administration allowed the containers intended to support the concession activities to enter and remain in the park without SETENA having previously granted any form of feasibility constitutes a violation of the right to a healthy and ecologically balanced environment. Consequently, and in order to restore the situation to its original state, the Chamber grants this claim and orders the respondent authorities to remove the aforementioned containers from the Parque Nacional until SETENA approval has been obtained.

The order is limited to the authorities responsible for the Parque Nacional, as they are charged with protecting and properly administering it. The application against the respondent companies is dismissed because they are deemed to have acted in good faith in reliance on the authorization granted to them by the respondent authorities.” The foregoing is consistent with the position expressed by this Court in judgment nro. 2010-18702 de las 15:27 horas del 10 de noviembre de 2010:

“Certainly, each concession will first require an environmental impact study evaluated by SETENA. Nevertheless, some of these ecosystems—for example, marine reserves—are areas that were protected specifically to ensure that no extractive activity occurs there and that they are not affected by any form of pollution (engine exhaust, noise pollution, light pollution, etc.), so that their flora and fauna may regenerate over time until their populations reach the highest number of specimens that the site can sustain; this is wholly incompatible with granting a concession for a tourist marina because of the effects that would clearly alter the ecosystem. Other ecosystems mentioned may not necessarily require an absolute prohibition (veda absoluta) on all activity, but any authorization to that effect must be assessed and anticipated. As already indicated, it is unreasonable to protect some areas and not others without a technical criterion supporting that distinction, since doing so violates the precautionary principle (principio precautorio) and the principle of progressive expansion of the scope of protection of fundamental rights (principio de progresividad del ámbito de tutela de los derechos fundamentales).” More recently, in the aforementioned judgment nro. 2022-22606 de las 13:10 horas del 28 de setiembre de 2022, this Chamber held that, in accordance with the precautionary principle, environmental impact studies evaluated by the Secretaría Técnica Nacional Ambiental must be available before the granting of concessions in Refugio Nacional de Vida Silvestre Ostional may be authorized. Thus, this Chamber unanimously stated:

“(…) it is also substantively unconstitutional (inconstitucionalidad por el fondo) because, in compliance with the Precautionary Principle, before changing the nature of the Refugio, its scope of protection, and permitting concessions, an environmental impact study evaluated by the Secretaría Técnica Ambiental is required, so as to demonstrate the type of harm and the measures that must be adopted. Such a study is absent from this legislative initiative, since protection could not be withdrawn from a refuge without technical criteria supporting that decision (…)”.

Accordingly, certain types of concessions are permitted in national parks because the Ley del Servicio de Parques Nacionales confines the prohibition to that set forth in its section 12, which states: “No concessions of any kind may be granted for the exploitation of products from national parks, nor may permission be granted to establish facilities other than those of the Service.” Nevertheless, pursuant to the principle that environmental protection must be based on objective criteria (principio de objetivación de la tutela ambiental), before an authorization, use permit, or concession is granted—as provided in section 9 of law nro. 9892—a study must be available that makes it possible to determine technically and scientifically that the environment will not be harmed. Furthermore, in view of the environmental impact that could result from operating a concession, authorization, or use permit in an absolutely protected wildlife area (área silvestre protegida de resguardo absoluto), such as a national park, sufficient and appropriate measures must be adopted to preserve the environment in accordance with the precautionary and preventive principles (principios precautorio y preventivo).

With regard to the matter under examination, it should be noted that ley nro. 5469, through which ownership of Isla San Lucas was transferred to the Municipalidad de Puntarenas, provided: “Article 3.- The Municipality may carry out such exploitation itself or through public bidding (licitación pública). In the latter case, the award must necessarily be made to the best offer, in the Municipality’s judgment, received from nationally owned companies.” With the enactment of ley nro. 9892, that provision was repealed and, in its place, the possibility is contemplated of granting authorizations (autorizaciones), concessions (concesiones), and permits of use (permisos de uso) for activities and facilities other than park services in the tourist zone—Article 7 thereof.

Accordingly, this Court considers that Article 7, as well as subsections f) and j) of Article 9 of ley nro. 9892, regarding the authorization of concessions and permits on Isla San Lucas, are not unconstitutional, provided that, before such authorizations, concessions, and permits are approved, prior technical studies (estudios técnicos previos) are available that are sufficient, individualized, and necessary to determine: i) the need to grant them; and ii) that no harm will be caused, nor danger posed, to the environment or cultural heritage (patrimonio cultural).

XII. REGARDING THE ALLEGED UNCONSTITUTIONALITY OF LEY NRO

9892 DUE TO UNCERTAIN FUNDING.

The petitioners state that Parque Nacional Isla San Lucas lacks a budget. They believe that this situation contravenes Article 36 of the Ley Orgánica del Ambiente (in connection with Article 50 of the Constitution), which establishes that, in order to create new areas, funding must be provided for their protection and management. They maintain that the challenged legislation created a national park with a tourist zone without providing specific funding to carry out the relevant activities, which is irresponsible because it leaves the matter to the goodwill of institutions and companies. Similarly, they question the fact that Article 5 establishes the State’s obligation to restore the architectural heritage (patrimonio arquitectónico) located on the island but does not indicate where those resources will come from. Finally, they consider that, if companies are said to donate maintenance services and even to be permitted to make investments, as Article 18 thereof states, this could be because they seek commercial purposes involving the exploitation of the national park, which is perverse, since it creates an entire framework through which the purpose of a national park could be distorted in the sustainable tourism-use sector (sector de aprovechamiento turístico sostenible).

Regarding this grievance, this Court finds that the challenged ley nro. 9892 provides:

“ARTICLE 17- Funding. Parque Nacional Isla San Lucas shall have financial resources enabling it to carry out its mandates efficiently and expeditiously. These shall include the resources allocated to it by law from Sistema Nacional de Áreas de Conservación (SINAC), transfers from the budgets of the Republic, or donations from any natural or legal person (persona física o jurídica), as well as the revenue generated by admission to the park, use of its services, fees (cánones) from concessions and permits, and, in general, payment for activities conducted within the park.

The resources governed by this law, as well as all resources generated by the park, shall necessarily and exclusively be invested in the national park itself.

Oversight shall be entrusted to the Contraloría General de la República.

ARTICLE 18- Authorization to donate and subsidize. The entire State, non-State, and financial public sector is authorized to make donations and investments and to include budgetary subsidies for the benefit of Parque Nacional Isla San Lucas.

The Instituto Costarricense de Turismo (ICT) may transfer financial resources to the Junta Directiva del Parque Nacional Isla San Lucas for its development investments and ordinary activities; it may also design and conduct promotional and marketing activities to encourage visits to the park.

The Board of Directors may receive donations from international organizations and foreign governments interested in supporting the park’s purposes.

ARTICLE 19- Authorization for credit and loans. To fulfill its objectives, the Board may arrange credit and/or loans with public or private, domestic or foreign entities, always subject to the controls and provisions of Ley 8131, Ley de Administración Financiera de la República y Presupuestos Públicos, dated 18 de setiembre de 2001” (emphasis added).

In view of the foregoing, it should be noted that the Ley Orgánica del Ambiente imposes, as a requirement for creating new protected wild areas (áreas silvestres protegidas), the availability of “d) Minimum funding to acquire, protect, and manage the area.” It should also be noted that the Ley de Biodiversidad provides:

“ARTICLE 35.- Funding. Sistema Nacional de Áreas de Conservación shall design funding mechanisms enabling it to carry out its mandates efficiently and expeditiously. Such mechanisms shall include transfers from the budgets of the Republic or from any natural or legal person, as well as revenue generated by protected areas (áreas protegidas), including admission fees, payment for environmental services (pago de servicios ambientales), debt-for-nature swaps (canjes de deuda), fees established by law, payment for activities conducted within protected areas, and donations.

ARTICLE 36.- Financial instruments. For the purposes of the preceding article, the System is authorized to administer funds received by the System from any source through trusts (fideicomisos) or other instruments, whether for the entire System or specifically for each Conservation Area (Área de Conservación). The Fondo de Parques Nacionales, created by Ley de Creación del Servicio de Parques Nacionales, No. 6084, dated 24 de agosto de 1977, is hereby converted into the Fideicomiso de áreas protegidas, devoted exclusively to the purposes for which it was created, henceforth including the funding of protection and consolidation activities in the other categories of State-owned protected areas (…)

ARTICLE 38.- Self-funding. The System shall use in the Conservation Areas, for their operation, all funds generated by their activities, such as admission fees to protected areas or concessions for nonessential services (concesiones de servicios no esenciales). These shall be administered through the Fideicomiso de áreas protegidas. Funds generated by protected areas shall be used exclusively for their protection and development, in that order of priority. The Consejo Nacional de las Áreas de Conservación shall be the body responsible for defining annual budgets so that the System is strengthened as a whole (…)

ARTICLE 41.- Existing funds and resources. In addition, for the faithful fulfillment of the purposes and objectives of Ley de Conservación de la Vida Silvestre, No. 7317, dated 30 de octubre de 1992; Ley Forestal, No. 7575, dated 13 de febrero de 1976; Ley de Creación del Servicio de Parques Nacionales, No. 6084, dated 24 de agosto de 1977; and Ley Orgánica del Ambiente, No. 7554, dated 4 de octubre de 1995, and to cover the expenses arising therefrom, the System shall have the appropriations from the budgets of the Republic and the resources of funds already existing within the System, which may be administered through a trust arrangement or through such financial instruments as may be established.” Now, although the petitioning party believes that ley nro. 9892 provides uncertain funding for Parque Nacional Isla San Lucas, it is equally true that this body of legislation does, in fact, establish the manner in which that protected wild area will receive financial resources.

It should be noted that Article 17 thereof provides that those resources will include the resources allocated to SINAC, as well as those from “any natural or legal person, as well as the revenue generated by admission to the park, use of its services, fees from concessions and permits, and, in general, payment for activities conducted within the park.” Thus, prima facie, the alleged unconstitutionality of Article 17 of ley nro. 9892 is without foundation. Moreover, the petitioners’ allegation concerning the possibility that companies making donations or investments in Parque Nacional Isla San Lucas may pursue commercial purposes that distort the purpose of a national park amounts to mere speculation. Accordingly, this part of the action is dismissed.

XIII. REGARDING THE ALLEGED UNCONSTITUTIONALITY OF LEY NRO

9892 WITH RESPECT TO THE INCORPORATION OF PRIVATE SECURITY OFFICERS AT PARQUE NACIONAL ISLA SAN LUCAS.

The petitioners state that Article 15 of ley nro. 9892 is constitutionally defective because it authorizes the incorporation of private security personnel to perform surveillance duties at Parque Nacional Isla San Lucas, which even threatens the park’s finances, since it does not indicate where the funds to cover the officers’ salaries will come from. They further assert that surveillance duties must remain in the hands of SINAC park rangers (guardaparques), who possess the knowledge, training, and sensitivity required to act within a national park.

Regarding this grievance, Article 15 of ley nro. 9892 governs the surveillance and security of Parque Nacional Isla San Lucas as follows:

“ARTICLE 15- Surveillance and security. Parque Nacional Isla San Lucas shall be provided with the necessary number of park rangers from Sistema Nacional de Áreas de Conservación of Ministerio de Ambiente y Energía (MINAE), without prejudice to the possibility that the Board of Directors, either directly or through the corresponding administrative trust (fideicomiso de administración), may hire such security personnel as it considers necessary; such personnel shall have no police authority (autoridad de policía) and may not exercise nondelegable functions inherent to the administration. It may also request assistance from Ministerio de Seguridad in situations warranting such assistance” (emphasis added).

Additionally, the Ley de Conservación de la Vida Silvestre provides:

“Article 7.- Sistema Nacional de Áreas de Conservación of Ministerio de Ambiente y Energía shall have the following functions in the exercise of its authority: (…)

• i)Create and manage wildlife management, control, surveillance, and research programs (…)

Article 15.- To assist in the application of and compliance with this Law, Ministerio de Ambiente y Energía shall appoint wildlife inspectors (inspectores de vida silvestre), honorary wildlife inspectors (inspectores ad honorem de vida silvestre), and natural-resource surveillance committees (comités de vigilancia de los recursos naturales, COVIRENAS).

Wildlife inspectors have police authority and must be duly identified by an identification card issued by Ministerio de Ambiente y Energía. To be eligible for an appointment of this nature, inspectors must be persons of good conduct; for this purpose, at the request of Ministerio de Ambiente y Energía, Registro Judicial de Delincuentes shall issue a certification of their criminal records. The remaining entry requirements shall be established in the Regulations to this Law. Their appointments may be revoked at any time by Ministerio de Ambiente y Energía.

Article 16.- For the faithful fulfillment of the obligations established in this law, wildlife inspectors, forestry inspectors, park rangers, and Sinac officials duly accredited for such purposes and acting in the performance of their duties are empowered to detain persons, travel through and enter any property or vessel, and conduct inspections therein, as well as in the industrial and commercial facilities involved, and to seize wildlife organisms, parts, products, and derivatives, together with the equipment used in the commission of an offense or activity prohibited by this law.

In the case of private residences, authorization from the competent judicial authority or the owner shall be required” (emphasis added).

For its part, the Ley Forestal provides in Article 54:

“ARTICLE 54.- Forestry Administration Officials. Officials of the State Forestry Administration shall have the status of police authorities (autoridad de policía) and, as such and in accordance with this law, shall report any violations committed to the competent authorities. Police authorities shall be required to cooperate with officials of the State Forestry Administration whenever requested to do so, so that those officials may fully perform the functions and duties imposed upon them by this law. In carrying out their responsibilities, these officials, identified by their respective credentials, shall have the right to travel through and conduct inspections on any rural property or forestry industry premises, except for any dwelling located thereon; they may also seize timber and other forest products unlawfully harvested or processed and impound, as security for a potential penalty, the equipment and machinery used in the unlawful act. They shall also seize any means of transportation used as an instrument or facilitator in the commission of the offense, after preparing the corresponding official record (acta). All of the foregoing shall be placed at the disposal of the competent judicial authority within no more than three days” (boldface added).

Likewise, it should be noted that Article 35 of the Organic Law of the Environment (Ley Orgánica del Ambiente) provides: “The creation, conservation, administration, development, and oversight of protected areas (áreas protegidas) shall have the following objectives: (…) f) To protect the natural and scenic surroundings of historic and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.” It is also appropriate to recall this Court’s holding in Judgment No. 2004-10492, issued at 15:28 on September 28, 2004, which analyzed the concession (concesión) of the public security service, specifically security within a correctional facility:

“X.- Concessionaire’s powers in relation to the provision of security services. Of all the aspects covered by the procurement procedure challenged in this action, perhaps the one most vigorously disputed by the petitioners is the provision of security services within the correctional facility by the concessionaire, because it is precisely in performing this function that the State most commonly exercises its sovereign powers (potestades de imperio) to compel persons deprived of liberty to comply with the various rules of coexistence applicable to an institutional care facility, thereby ensuring fulfillment of the purposes of deprivation of liberty and guaranteeing the safety of all inmates, responsible personnel, and third parties. Thus, clauses 2.2.4, 2.4.1.b) and c), 23.1, 23.2.1, 23.3.2, 23.5.2.1, 23.5.4, and 23.5.5.d) of the Bidding Terms (Cartel de Licitación), 2.1.1, 5.4, 6.2, 6.2.5, and 6.3.1 of Document X of Anexo 1A, as well as documents X(b) and X(c) of Anexo 1A, extensively describe the concessionaire’s powers and duties regarding the provision of security services, the management of persons deprived of liberty, and activities supporting the authorities of the General Directorate of Social Adaptation (Dirección General de Adaptación Social).

Although the Bidding Terms provide that security within the correctional facility’s inner perimeter is the responsibility of the concessionaire, while the State retains responsibility for monitoring the outer perimeter (cf. clauses 2.4.1.c), 23.5.2.1, and 6.3.1 of Document X of Anexo 1A, and documents X(b) and X(c) of Anexo 1A), for these provisions to be consistent with Constitutional Law (Derecho de la Constitución), they must be interpreted as follows: none of these clauses may be understood as permitting the concessionaire to impose its decisions, or those of any other persons, upon persons deprived of liberty. The proportional use of force and direct coercion (coacción directa) may validly be employed only as immediate responses to the commission of offenses or in defense of the concessionaire’s own legally protected interests (bienes jurídicos) or those of others, whether to protect the safety of persons inside the correctional facility (inmates, visitors, officials, etc.), to prevent the escape of persons deprived of liberty, the trafficking of prohibited substances or objects, the destruction or removal of property, etc. Thus, when force is necessary to enforce rules of coexistence without any effect on the aforementioned legally protected interests, it may not be used by the concessionaire, but only by the authorities of the General Directorate of Social Adaptation assigned to the Pococí Correctional Facility.

Accordingly, the term ‘emergency situations,’ which, under the Bidding Terms (cf. clauses 25.4 and 23.5.2.1, and clause 6.3.5.1 of Document X of Anexo 1A), warrant intervention by the police authorities stationed along the facility’s outer perimeter, must be interpreted as encompassing any situation in which the use of force becomes necessary to ensure proper coexistence within the correctional facility, except in one of the exceptional cases already mentioned in which the concessionaire may act on its own to stop a criminal act. In any other cases involving situations that jeopardize proper coexistence, the concessionaire must limit itself to observing what occurred, attempting to resolve it peacefully, reporting it to the authorities of the General Directorate of Social Adaptation so that they may act, preparing the corresponding reports for the authorities responsible for the assessment and disciplinary regime applicable to persons deprived of liberty, and providing support services to police officers that do not entail the direct exercise of sovereign powers.

To that end, the General Directorate of Social Adaptation must permanently maintain a sufficient contingent of officers along the outer perimeter to respond adequately to any situations that arise. Accordingly, with respect to the aforementioned functions, the Chamber finds that there has been no transfer of powers reserved to the State, as alleged by the Office of the Ombudsperson of the Republic (Defensoría de los Habitantes de la República), provided that the clauses concerning security functions, the management of persons deprived of liberty, and activities supporting the authorities of the General Directorate of Social Adaptation are interpreted in the manner stated in this paragraph” (emphasis added).

Consistent with the foregoing and the ratio decidendi of the aforementioned decision, it is neither arbitrary nor contrary to the Political Constitution (Constitución Política) for a private company, under a contract, to assist in providing security services in a protected wildlife area (área silvestre protegida), provided that such services do not entail the exercise of sovereign powers by that company. In this regard, it should be noted that this Court has already ruled on the duties that park rangers may perform by virtue of their status as police authorities, as reflected in Judgment No. 2018-5836, issued at 9:30 on April 13, 2018:

“IV.- Analysis of the case. According to the report submitted by the competent respondent authority, the officials against whom the complaint was filed not only (sic) acted in the performance of their duty in response to an encroachment upon and environmental damage to Refugio Nacional de Vida Silvestre Barra del Tortuguero, but also acted pursuant to the statutory authority granted by Articles 54 of the Ley Forestal and 16 of the Wildlife Law (Ley de Vida Silvestre):

‘…ARTICLE 54.- Forestry Administration Officials Officials of the State Forestry Administration shall have the status of police authorities and, as such and in accordance with this law, shall report any violations committed to the competent authorities.

Police authorities shall be required to cooperate with officials of the State Forestry Administration whenever requested to do so, so that those officials may fully perform the functions and duties imposed upon them by this law.

In carrying out their responsibilities, these officials, identified by their respective credentials, shall have the right to travel through and conduct inspections on any rural property or forestry industry premises, except for any dwelling located thereon; they may also seize timber and other forest products unlawfully harvested or processed and impound, as security for a potential penalty, the equipment and machinery used in the unlawful act. They shall also seize any means of transportation used as an instrument or facilitator in the commission of the offense, after preparing the corresponding official record. All of the foregoing shall be placed at the disposal of the competent judicial authority within no more than three days.

ARTICLE 16.- For the faithful fulfillment of the obligations established in this law, duly accredited wildlife inspectors, forestry inspectors, and park rangers acting in the performance of their duties are empowered to detain persons, travel through and enter any property, and conduct inspections, as well as to seize, on any property and at the industrial and commercial facilities involved, the products and by-products of prohibited activities, together with the implements used, as defined in the Regulations (Reglamento). In the case of private residences, authorization from the competent judicial authority or the owner shall be required….’ Accordingly, since the alleged arbitrariness concerning abuse of authority in the actions described has been ruled out, the appeal must be dismissed, as is hereby done” (emphasis added).

In the case at bar (sub iudice), it should first be noted that the monitoring and security of Parque Nacional Isla San Lucas do fall to the Sistema Nacional de Áreas de Conservación, whose park rangers are authorized to exercise sovereign powers in the performance of their police duties, consistently with the Wildlife Conservation Law (Ley de Conservación de la Vida Silvestre), which authorizes them to “(…) detain persons, travel through and enter any property or vessel, and conduct inspections therein, as well as in the industrial and commercial facilities involved, and to seize wildlife organisms, parts, products, and derivatives, together with the equipment used in the commission of an offense or activity prohibited by this (…)”. Second, although the challenged provision authorizes the Board of Directors of Parque Nacional Isla San Lucas to hire private security personnel, it is no less true that this authority is restricted, since such personnel i) shall not have the status of police authorities; and ii) may not perform nondelegable functions (funciones indelegables) belonging to the administration.

It is even deemed plausible that consideration be given to the possibility of hiring private security on Isla San Lucas, particularly given that acts of vandalism have occurred in the past, causing harm both to the environment and to cultural heritage. For example, memorandum SINAC-ACOPAC-D-485-2017, signed on 18 de agosto de 2017 by the regional director of Área de Conservación Pacífico Central, stated: “Last Wednesday, dieciséis de agosto del dos mil diecisiete, during the night, personnel assigned to RNVSISL were victims of an armed robbery, which resulted in the loss of equipment and material resources, widespread damage to the infrastructure of the Sistema Nacional de Áreas de Conservación (SINAC) located there, and physical and psychological harm to the staff member present, who was threatened and even tied up during the crime. To safeguard the safety of personnel and, furthermore, because the site no longer provides the minimum conditions required for staff to remain there, given the deterioration of the infrastructure, you are hereby informed that SINAC has withdrawn the personnel assigned to the protected wildlife area (área silvestre protegida); they will conduct only daytime surveillance visits and will leave RNVSISL at times appropriate for safe navigation.

Likewise, until safety and habitable conditions at the site are guaranteed, no personnel will be stationed there permanently or at night for surveillance purposes. You are hereby informed of the foregoing because Área de Conservación Pacífico Central (ACOPAC) is unable, for the reasons stated, to continue providing the surveillance previously afforded to the cultural heritage located within this protected wildlife area.” Additionally, police report S.I.: 0096-DRP-2018 of 12 de enero de 2018 states: “On 26 de noviembre del 2017, the investigator (…) a member of O.I.J de Puntarenas, accompanied by (…) a member of the K9 unit and the dog ‘Nany,’ traveled aboard a coast guard vessel from Caldera to Isla de San Lucas to conduct an on-site inspection (Inspección Ocular) of the place destroyed by fire, (…) finding the complete destruction of a wooden building, entirely consumed by fire. They determined that the greatest concentration of heat had been on the east wall, as metal material in the building was found bent by the intensity of the fire.

During the inspection conducted by the dog ‘Nany,’ the dog located traces of hydrocarbons in the lower corner of the doorframe on the east side of room two. They also found two latent fingerprint traces on a bottle located near the burned remains of the infrastructure, which were sent to Archivo Criminal de Puntarenas for analysis (…) On 13 de diciembre del 2017, at 08:00 hours, the investigator assigned to the case interviewed the complainant, whose particulars are contained in the complaint. He confirmed the reported events and added that the first person to arrive on the island was Mr. Diego, accompanied by a group of volunteers, who found that the main building had been burned. However, because the guards at the site had been victims of an assault in agosto del 2017, they decided that staff would no longer remain there at night, meaning that after 16:00 hours the island is left entirely unoccupied.

Later, during an inspection with fire-department engineering personnel, they established that sinks, toilets, doorknobs, and other items had been removed, something they had not initially known (…) On 11 de enero del 2018, at 10:45 hours, the investigator assigned to the case interviewed Diego (…), an A.S.V.O staff member, (…) who stated that on the day of the events he had entered Isla de San Lucas with several volunteers to perform maintenance on the facilities. To his surprise, upon arriving at the site, he found that the main building had burned down completely, and he therefore immediately notified Olger (…). He added that what was strange upon their arrival was finding a large number of beer and liquor cans, as well as cigarette butts, along the stairs and an area of vegetation burned by the fire, suggesting that someone had prevented the fire from spreading through the vegetation.

He concluded by saying that he had no further information to provide.” Therefore, the mere possibility of hiring private security under the challenged provision does not mean that the personnel of the selected companies would possess sovereign powers (potestades de imperio) when providing the corresponding service. In this context, to provide greater certainty on this point, it is entirely plausible to interpret that provision in conformity with the Constitution, meaning that private security personnel will have no police authority (autoridad de policía) and are not empowered to exercise sovereign powers in providing the service at issue.

XIV- CONCLUSION. As a corollary to all the foregoing, this action must be dismissed with respect to the applicants’ claims, with the clarification that the composition of the Board of Directors governed by the challenged section 9 is not deemed unconstitutional, provided that the final paragraph of that article is interpreted to mean that, in decisions concerning environmental matters and historical and architectural heritage, that collegiate body (órgano colegiado) must first consult the bodies cited therein, whose opinions—in their respective areas—will be binding on the Board of Directors. It is likewise noted that any specific decision concerning the administration or management of the national park may also be reviewed through ordinary legality proceedings (vías ordinarias de legalidad), or through constitutional proceedings, should it be determined that such decisions infringe the fundamental right (derecho fundamental) to a healthy and ecologically balanced environment (ambiente sano y ecológicamente equilibrado).

Justice Garro Vargas files a note. Justices Cruz Castro, Rueda Leal, and Garita Navarro dissent, grant the action, and annul law nro. 9892 of 24 de agosto de 2020, entitled “Ley de Creación del Parque Nacional Isla San Lucas,” for violating the principles of progressivity and non-regression in environmental matters (principios de progresividad y de no regresión en materia ambiental), the precautionary and preventive principles (principios precautorio y preventivo)—in environmental and cultural-heritage matters—the principle of objective environmental protection (principio de objetivación de la tutela ambiental), and articles 50 and 89 of the Constitución Política. Justice Cruz Castro provides additional reasons.

XV. DOCUMENTATION SUBMITTED TO THE CASE FILE

The parties are hereby advised that, if they submitted any paper document, as well as any objects or evidence contained on any additional electronic, computer, magnetic, optical, telematic, or new-technology device, they must retrieve them from the Court’s offices within no more than 30 business days from service of this decision. Otherwise, any material not retrieved within that period will be destroyed, in accordance with the “Reglamento sobre Expediente Electrónico ante el Poder Judicial,” approved by Corte Plena at session n.º 27-11 of 22 de agosto del 2011, article XXVI, and published in Boletín Judicial number 19 of 26 de enero del 2012, as well as the resolution approved by Consejo Superior del Poder Judicial at session n.º 43-12 of 3 de mayo del 2012, article LXXXI.

Por tanto:

By majority vote, the action of unconstitutionality (acción de inconstitucionalidad) is dismissed. By majority vote, the composition of the Board of Directors governed by section 9 is deemed not unconstitutional, provided that the final paragraph of that article is interpreted to mean that, in decisions concerning environmental matters and historical and architectural heritage, that collegiate body must first consult the bodies cited therein, whose opinions—in their respective areas—will be binding on the Board of Directors. Justice Garro Vargas files a note. Justices Cruz Castro, Rueda Leal, and Garita Navarro dissent, grant the action, and annul law nro. 9892 of 24 de agosto de 2020, entitled “Ley de Creación del Parque Nacional Isla San Lucas,” for violating the principles of progressivity and non-regression in environmental matters, the precautionary and preventive principles—in environmental and cultural-heritage matters—the principle of objective environmental protection, and articles 50 and 89 of the Constitución Política. Justice Cruz Castro provides additional reasons. A summary of this decision shall be published in Diario Oficial La Gaceta, and the full decision shall be published in Boletín Judicial. Notice shall be given to the attorney general of the Republic, the applicants, and the parties. The president of Asamblea Legislativa shall be informed.

Fernando Castillo V.

Chief Justice Fernando Cruz C. Paul Rueda L.

Luis Fdo. Salazar A. Jorge Araya G.

Anamari Garro V. Roberto Garita N.

Res: 2023-012817 NOTE OF JUSTICE GARRO VARGAS I consider it necessary to note that, in previous notes (see judgments numbers 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316, 2022-009856 and 2021-015449, among others), I have made certain observations concerning the exercise of constitutional review (control de constitucionalidad) and international instruments as a standard of review (parámetro de valoración). In this regard, insofar as relevant and in summary, I have stated the following:

“The function of reviewing the conformity of laws and general provisions with treaties and conventions is not expressly provided for in the constitutional text, but only in art. 73.d) LJC; nevertheless, it is not contrary to that text, because it safeguards the effectiveness of art. 7 CP. The function of reviewing such conformity is distinct from the function exercised by the Chamber pursuant to art. 10 CP—constitutional review—and from that established in art. 48 CP—judicially safeguarding constitutional rights and the fundamental rights established in international human-rights instruments.

When this Chamber exercises its constitutional-review function, it should not resort to treaties and use them, in practice, as though they formed part of the constitutional standard of review (parámetro de constitucionalidad). Such instruments, and only if duly ratified, may serve as the standard for determining the conformity of statutory and substatutory provisions (normas legales e infralegales) with those same instruments, pursuant to art. 7 CP and 73.d) LJC. This is consistent with a systematic interpretation of the Constitution and LJC and with respect for the separation of powers, a foundational principle of every democratic state governed by the rule of law (Estado democrático de Derecho).” (Emphasis does not appear in the original opinions.)

In this particular case, reference is made to judgment n.°2010-13099 issued at 14:56 hrs. on 4 de agosto de 2010, in which I did not participate. That precedent refers to the “Código Ético Mundial para el Turismo,” adopted in 1999 by Asamblea General de la Organización Mundial del Turismo and subsequently recognized by Asamblea General de las Naciones Unidas through resolution n.°A/RES/56/212.

I consider the reference to that instrument appropriate if it is understood as being made solely for interpretive purposes and not because the instrument is itself binding.

Anamari Garro V.

Res. nro. 2023012817 DISSENTING OPINION OF JUSTICES CRUZ CASTRO, RUEDA LEAL, AND GARITA NAVARRO, AUTHORED BY THE SECOND.

In the case at bar (sub lite), with customary respect, we disagree with the majority opinion of this Court, sustain the action, and annul Law No. 9892 of 24 August 2020, entitled ‘Ley de Creación del Parque Nacional Isla San Lucas’, for violating the principles of progressivity (progresividad) and non-regression (no regresión) in environmental matters; the precautionary principle (principio precautorio) and preventive principle (principio preventivo)—in environmental and cultural-heritage matters—; the principle of objective substantiation of environmental protection (principio de objetivación de la tutela ambiental); and Articles 50 and 89 of the Political Constitution, in accordance with the reasoning set forth below.

I.On protected wilderness areas (áreas silvestres protegidas) and the right to a healthy and ecologically balanced environment (derecho a un ambiente sano y ecológicamente equilibrado). Regarding this right, in Judgment No. 2022022070 at 9:20 a.m. on 23 September 2022, the Chamber stated:

“With regard to the nature of the grievances alleged in the case at bar, this Court has ruled repeatedly on the right to a healthy and ecologically balanced environment. For example, in Judgment No. 2021024807 at 9:20 a.m. on 5 November 2021, this Chamber stated:

“On repeated occasions, this Chamber’s case law has emphasized that the right to a healthy and ecologically balanced environment is recognized at both the constitutional and treaty levels. It has likewise indicated that effective protection of this right requires the rational use of resources, in a context in which the State and the public at large must act in accordance with the principles governing environmental matters. In this regard, specialized legal scholarship has noted that the preventive principle requires that, when there is certainty concerning possible environmental harm, the activity causing the impact must be prohibited, restricted, or made conditional upon compliance with certain requirements. In general, this principle applies when risks have been clearly defined and identified as at least probable; it is also useful when no technical reports or administrative permits guarantee the sustainability of an activity, but sufficient grounds exist to anticipate potential adverse impacts.

The precautionary principle, by contrast, provides that when there is a threat of serious and irreversible harm, a lack of absolute scientific certainty must not be used as a reason for postponing cost-effective measures to prevent environmental degradation. It follows that this principle is based on reasonable scientific uncertainty coupled with the threat of serious and irreversible environmental harm. In general terms, a significant difference between the preventive and precautionary principles lies in the degree of knowledge and certainty regarding the risks posed by an activity or project. Whereas such certainty exists under the former, the latter involves a state of doubt resulting from scientific information or technical studies. Accordingly, the Costa Rican State is required to adopt measures that ensure the effective defense and preservation of the environment in accordance with these principles.

This objective obligation does not, however, invariably entail a subjective right (derecho subjetivo) of individuals to demand, through the courts, that a particular measure be taken; it does entail a right to the adoption of measures suitable for protecting that right when authorities—or natural persons and legal entities—act in an openly negligent manner, in accordance with the recognized theory of the horizontal effect of fundamental rights (teoría de la eficacia horizontal de los derechos fundamentales) (Drittwirkung der Menschenrechte), one of whose procedural manifestations is the amparo proceeding (amparo) against private-law parties.

It is also important to emphasize that the Inter-American Court of Human Rights, in Advisory Opinion OC-23/17 of 15 November 2017, addressed State obligations relating to the environment for the purpose of safeguarding the human rights enshrined in the American Convention on Human Rights.

In that opinion, the Court recognized the interrelationship between environmental protection and the realization of other rights, insofar as environmental degradation affects the effective enjoyment and exercise of human rights. In this regard, it stated:

“47. This Court has recognized the existence of an undeniable relationship between environmental protection and the realization of other human rights, insofar as environmental degradation and the adverse effects of climate change impair the effective enjoyment of human rights. Likewise, the preamble to the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (hereinafter, the “Protocol of San Salvador”) emphasizes the close relationship between the observance of economic, social, and cultural rights—which include the right to a healthy environment—and that of civil and political rights. It indicates that the various categories of rights constitute an indivisible whole grounded in recognition of the dignity of the human person and therefore require permanent protection and promotion to achieve their full observance, and that the violation of some rights can never be justified for the sake of realizing others (…)

49. The Inter-American Commission, for its part, has emphasized that several fundamental rights require a minimum level of environmental quality as a necessary precondition for their exercise and are profoundly affected by the degradation of natural resources. Similarly, the OAS General Assembly has recognized the close relationship between environmental protection and human rights (supra para. 22) and has emphasized that climate change adversely affects the enjoyment of human rights. 50. In the European context, the European Court of Human Rights has recognized that severe environmental degradation may affect an individual’s well-being and, consequently, give rise to violations of individual rights, such as the rights to life, respect for private and family life68, and private property. Similarly, the African Commission on Human and Peoples’ Rights has indicated that the right to a “generally satisfactory environment favorable to development” is closely related to economic and social rights insofar as the environment affects individuals’ quality of life and safety (…) 52.

Furthermore, international law broadly recognizes the interdependent relationship between environmental protection, sustainable development, and human rights. This interrelationship has been affirmed since the Stockholm Declaration on the Human Environment (hereinafter, the “Stockholm Declaration”), which established that “[e]conomic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for improving the quality of life,” thereby affirming the need to balance development with protection of the human environment. Subsequently, in the Rio Declaration on Environment and Development (hereinafter, the “Rio Declaration”), the States recognized that “[h]uman beings are at the centre of concerns for sustainable development” and, at the same time, emphasized that “[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process.” Following the foregoing, the Johannesburg Declaration on Sustainable Development established the three pillars of sustainable development: economic development, social development, and environmental protection.

Likewise, in the corresponding Plan of Implementation of the World Summit on Sustainable Development, the States recognized that consideration must be given to the possible relationship between the environment and human rights, including the right to development. 53. Moreover, in adopting the 2030 Agenda for Sustainable Development, the United Nations General Assembly recognized that the realization of human rights for all depends on achieving the three dimensions of sustainable development: economic, social, and environmental. Similarly, several instruments within the inter-American system have addressed environmental protection and sustainable development, including the Inter-American Democratic Charter, which provides that “[t]he exercise of democracy promotes the preservation and sound management of the environment”; consequently, “it is essential that the states of the Hemisphere implement policies and strategies to protect the environment, including application of various treaties and conventions, for the sake of achieving sustainable development for the benefit of future generations” (…) 55.

As a consequence of the close connection between environmental protection, sustainable development, and human rights (supra paras. 47 to 55), currently (i) multiple human-rights protection systems recognize the right to a healthy environment as a right in itself, particularly the inter-American human-rights system, while there is no doubt that (ii) many other human rights are vulnerable to environmental degradation. All of this entails a series of environmental obligations for States in order to fulfill their duties to respect and guarantee these rights. Specifically, another consequence of the interdependence and indivisibility of human rights and environmental protection is that, in determining these State obligations, the Court may draw on the principles, rights, and obligations of international environmental law, which, as part of the international corpus juris, contribute decisively to defining the scope of the obligations arising from the American Convention in this area (supra paras. 43 to 45) (…) 59.

The human right to a healthy environment has been understood as a right with both individual and collective dimensions. In its collective dimension, the right to a healthy environment constitutes a universal interest owed to both present and future generations. The right to a healthy environment also has an individual dimension, insofar as its violation may have direct or indirect repercussions for individuals because of its connection with other rights, such as the rights to health, personal integrity, and life, among others. Environmental degradation can cause irreparable harm to human beings; consequently, a healthy environment is a fundamental right essential to humanity’s existence.” This interrelationship between the environment and the enjoyment of other human rights has also been recognized by the United Nations Human Rights Council, which, in Resolution A/HRC/RES/46/7, adopted on 23 March 2021 at its 46th session, stated:

“Recognizing also that sustainable development and environmental protection, including the protection of ecosystems, contribute to human well-being and the enjoyment of human rights, particularly the rights to life, to the enjoyment of the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to safe drinking water and sanitation, and to housing, as well as cultural rights.” More recently, in Resolution A/HRC/RES/48/13, adopted on 8 October 2021, that Council stated:

“(…) Recognizing that sustainable development (desarrollo sostenible), in its three dimensions (social, economic and environmental), and the protection of the environment, including ecosystems, contribute to and promote human well-being and the enjoyment of human rights, including the enjoyment of the rights to life, the highest attainable standard of physical and mental health, an adequate standard of living, adequate food, housing, drinking water and sanitation, and participation in cultural life, for present and future generations (…)

Recognizing also that environmental degradation, climate change and unsustainable development are some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights, including the right to life (…)

Recognizing the importance of a clean, healthy and sustainable environment as essential to the enjoyment of all human rights (…)

1. Recognizes the right to a clean, healthy and sustainable environment as a human right important for the enjoyment of human rights; 2. Notes that the right to a clean, healthy and sustainable environment is related to other rights and existing international law (…)”. (Emphasis not in the original).

This reflects the particular relevance of the fundamental right to a healthy and ecologically balanced environment (ambiente sano y ecológicamente equilibrado), the defense of which transcends the protection of this constitutional interest itself, since its preservation is an essential factor in effectively safeguarding other fundamental human interests (such as life, health, property and equality), such that if the former fails, effective protection of the latter cannot be achieved.

Moreover, in the opinion referred to above, the Inter-American Court of Human Rights recognized the right to a healthy environment as an autonomous right, capable of protection independently of any risk of harm to individual persons. In this regard, it held:

“62. This Court considers it important to emphasize that the right to a healthy environment as an autonomous right, unlike other rights, protects environmental components such as forests, rivers, seas and others as legal interests in themselves, even in the absence of certainty or evidence regarding risk to individual persons. This entails protecting nature and the environment not only because of their connection to a benefit for human beings or because of the effects that their degradation could have on other individual rights, such as health, life or personal integrity, but also because of their importance to the other living organisms with which the planet is shared, which also warrant protection in their own right. In this regard, the Court notes a trend toward recognizing legal personality and, consequently, rights of nature, not only in judicial decisions but even in constitutional systems. 63. Thus, the right to a healthy environment as an autonomous right is distinct from the environmental content arising from the protection of other rights, such as the right to life or the right to personal integrity.”. (Emphasis not in the original).

This position was adopted in the judgment of 6 de febrero de 2020 concerning the case “Comunidades Indígenas miembros de la Asociación Lhaka Honhat (Nuestra Tierra) vs. Argentina”, in which, moving beyond an anthropocentric approach, the Inter-American Court of Human Rights states that the right to a healthy environment, in addition to being fundamental to the very existence of human beings, is an autonomous and universal right, such that the protection of various environmental components (such as forests, seas, rivers and others) constitutes a legal interest in itself. In the words of the Inter-American Court of Human Rights: “This entails protecting nature,” not only because of its “benefit” or “effects” with respect to human beings, “but also because of its importance to the other living organisms with which the planet is shared.” Given the significance of this statement, it is appropriate to reproduce this section of the aforementioned decision:

“203. The Court has already addressed the content and scope of this right, considering various relevant provisions, in its Advisory Opinion OC-23/17, to which it refers. On that occasion, it stated that the right to a healthy environment “constitutes a universal interest” and “is a fundamental right for the existence of humankind,” and that “as an autonomous right […] it protects the components of the […] environment, such as forests, seas, rivers and others, as legal interests in themselves, even in the absence of certainty or evidence regarding risk to individual persons. This entails protecting nature,” not only because of its “benefit” or “effects” with respect to human beings, “but also because of its importance to the other living organisms with which the planet is shared.” The foregoing does not preclude, of course, other human rights from being violated as a consequence of environmental harm.”. (Emphasis not in the original).

Based on the foregoing, this Chamber, as guarantor of fundamental rights, must ensure compliance with treaty and constitutional obligations, which compel the State not only to recognize the rights enshrined therein, but also to impose the legal measures required to safeguard them” (emphasis in the original).

In addition to the foregoing, the United Nations General Assembly recently adopted resolution No. A/RES/76/1-A/RES/76/300 of 28 de julio de 2022, which stated:

“1. Recognizes the right to a clean, healthy and sustainable environment as a human right; 2. Notes that the right to a clean, healthy and sustainable environment is related to other rights and existing international law; 3. Affirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of multilateral environmental agreements in accordance with the principles of international environmental law; 4. Calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, enhance international cooperation, strengthen capacity-building and continue to share good practices in order to intensify efforts to ensure a clean, healthy and sustainable environment for all”.

This resolution is the formal expression of the will of the principal deliberative, policymaking and representative body of the United Nations. Consequently, it constitutes a universal political commitment that must be regarded as a highly relevant source of soft law.

Specifically, resolution No. A/RES/76/1-A/RES/76/300 affirms that the right to a healthy and ecologically balanced environment is a human right. In doing so, it contributes substantially to its enactment into positive law, resulting in its technical understanding as a “fundamental right.” It also strengthens the notion that environmental protection is an “autonomous” human right—that is, one that has value in itself—such that, on the one hand, it has its own conceptual existence, distinct from the environmental content that undoubtedly arises from the protection of other rights (such as life or health), and, on the other, its protected object transcends human beings, since it extends protection to the various components of nature because of their importance in preserving the existence of living organisms in general, irrespective of their utility to human beings.

It also reiterates and thereby strengthens the position that the right to a healthy and ecologically balanced environment is linked to other human rights, which means that its violation may entail violations of health, life and democratic sustainable development, to cite only a few examples. The foregoing gives the right at issue particularly significant legal meaning.

In addition, the UN General Assembly provides that protection of the right to a healthy and ecologically balanced environment requires the full application of treaty rights related to the environment, in accordance with the principles of international environmental law. It follows from the foregoing that its inclusion in this Chamber’s judicial review of constitutionality (control jurisdiccional de constitucionalidad) is indispensable.

Lastly, in keeping with the recognized theory of the horizontal effect of fundamental rights (eficacia horizontal de los derechos fundamentales) (Drittwirkung der Menschenrechte), resolution No. A/RES/76/1-A/RES/76/300 provides that the obligation to safeguard the environment extends beyond States to international organizations, business enterprises and other stakeholders, the latter term encompassing human beings generally. It is precisely in this regard that the Ley de la Jurisdicción Constitucional provides for amparo proceedings (amparo) against private-law entities.

In short, under the conceptual framework explained above, this Constitutional Court, as guarantor of fundamental rights, must ensure compliance with the treaty and constitutional commitments that impose upon the Costa Rican State and society in general not only the obligation to recognize environmental rights, principles and values, but also the obligation to implement all measures and actions necessary to ensure their effective protection” (emphasis in the original).

Likewise, protected wild areas (áreas silvestres protegidas) have been conceptualized by the World Commission on Protected Areas of the International Union for Conservation of Nature (UICN) as clearly defined geographical spaces that are recognized, dedicated and managed through legal or other effective means to achieve the long-term conservation of nature and its ecosystem services (servicios ecosistémicos) and associated cultural values. This means that the surface area of protected wild areas includes terrestrial areas, inland, marine and coastal waters, or a combination thereof, which has been recognized as such and therefore enjoys legal protection aimed at its conservation. It should be noted that Costa Rica has been a member of the UICN since 1980 as a result of efforts undertaken by the Ministerio de Energía y Minas and the Ministerio de Relaciones Exteriores y Culto. Likewise, through Article 1 of Law No. 7350 of 6 de julio de 1993, entitled ‘Acuerdo con la Unión Internacional para la Conservación de Naturaleza y Recursos Naturales (U.I.C.N.) para el establecimiento de su Sede Regional para Centroamérica’, the Government of Costa Rica recognized that organization as having “full legal personality for purposes of Costa Rican law.” In Costa Rica, pursuant to Article 58 of Law No. 7788 of 30 de abril de 1998, ‘Ley de Biodiversidad’, protected wild areas are delimited geographical zones consisting of land, wetlands (humedales) and portions of the sea that have been declared as such because of their special significance to ecosystems, the preservation of threatened species, their role in reproduction and other needs, and their historical and cultural significance.

In addition, such areas must be dedicated to the conservation and protection of biodiversity, soil, water resources (recurso hídrico), cultural resources and ecosystem services in general. Likewise, according to that provision, the corresponding technical reports for establishing protected wild areas must contain the pertinent recommendations and justifications “to determine the most appropriate management category (categoría de manejo) to which the proposed area should be subject.” With regard to protected areas (áreas protegidas), it is important to note that the ‘Convention on Biological Diversity and its Annexes,’ adopted in Río de Janeiro in 1992 and approved by Costa Rica through law no. 7416 of 30 de junio de 1994, provides:

“ARTICLE 1. Objectives The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity (diversidad biológica), the sustainable use (utilización sostenible) of its components, and the fair and equitable sharing of the benefits arising from the utilization of genetic resources (recursos genéticos), including through appropriate access to those resources and appropriate transfer of relevant technologies, taking into account all rights over those resources and technologies, and through appropriate funding (…)

ARTICLE 2. Use of Terms For the purposes of this Convention:

‘Protected area’ means a geographically defined area that has been designated or regulated and managed to achieve specific conservation objectives (…)

ARTICLE 8. In-situ Conservation (conservación in situ) Each Contracting Party shall, as far as possible and as appropriate:

• a)Establish a system of protected areas or areas where special measures must be taken to conserve biological diversity.
• b)Where necessary, develop guidelines for the selection, establishment, and management of protected areas or areas where special measures must be taken to conserve biological diversity.
• c)Regulate or manage biological resources (recursos biológicos) important for the conservation of biological diversity, whether within or outside protected areas, to ensure their conservation and sustainable use.
• d)Promote the protection of ecosystems and natural habitats and the maintenance of viable populations of species in natural surroundings.
• e)Promote environmentally sound and sustainable development in areas adjacent to protected areas, with a view to enhancing the protection of those areas.
• f)Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, including through the development and implementation of plans or other management strategies.
• g)Establish or maintain means to regulate, manage, or control the risks associated with the use and release of living modified organisms resulting from biotechnology that are likely to have adverse environmental effects that could affect the conservation and sustainable use of biological diversity, also taking into account risks to human health.
• h)Prevent the introduction of, control, or eradicate alien species that threaten ecosystems, habitats, or species.
• i)Endeavor to establish the conditions necessary to harmonize current uses with the conservation of biological diversity and the sustainable use of its components.
• j)Subject to its national legislation, respect, preserve, and maintain the knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity; promote their wider application with the approval and participation of the holders of such knowledge, innovations, and practices; and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations, and practices.
• k)Establish or maintain the necessary legislation and/or other regulatory provisions for the protection of threatened species and populations.
• l)Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities. And m) Cooperate in providing financial and other support for the in-situ conservation referred to in subparagraphs a) through l) of this Article, particularly to developing countries (…)

ARTICLE 10. Sustainable Use of the Components of Biological Diversity Each Contracting Party shall, as far as possible and as appropriate:

• a)Integrate consideration of the conservation and sustainable use of biological resources into national decision-making processes.
• b)Adopt measures relating to the use of biological resources to avoid or minimize adverse effects on biological diversity.
• c)Protect and encourage the customary use of biological resources in accordance with traditional cultural practices compatible with conservation or sustainable-use requirements.
• d)Assist local populations in developing and implementing remedial measures in degraded areas where biological diversity has been reduced. And e) Encourage cooperation between its governmental authorities and its private sector in developing methods for the sustainable use of biological resources (…)

ARTICLE 12. Research and Training The Contracting Parties, taking into account the special needs of developing countries, shall:

• a)Establish and maintain scientific and technical education and training programs concerning measures for the identification, conservation, and sustainable use of biological diversity and its components, and provide support for such purposes focused on the specific needs of developing countries.
• b)Promote and encourage research that contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, including in accordance with decisions adopted by the Conference of the Parties pursuant to recommendations of the subsidiary body on scientific, technical, and technological advice. And c) In accordance with the provisions of Articles 16, 18, and 20, promote the use of scientific advances in biological-diversity research to develop methods for the conservation and sustainable use of biological resources, and cooperate in that field (…)

ARTICLE 14. Impact Assessment and Minimization of Adverse Impacts

1. 1Each Contracting Party shall, as far as possible and as appropriate:

• a)Establish appropriate procedures requiring environmental impact assessment (evaluación del impacto ambiental) of its proposed projects that are likely to have significant adverse effects on biological diversity, with a view to avoiding or minimizing such effects, and, where appropriate, allow public participation in those procedures.
• b)Establish appropriate arrangements to ensure that the environmental consequences of its programs and policies that are likely to have significant adverse effects on biological diversity are duly taken into account.
• c)Promote, on a reciprocal basis, notification, exchange of information, and consultation concerning activities under its jurisdiction or control that are likely to have significant adverse effects on the biological diversity of other States or of areas beyond national jurisdiction, encouraging the conclusion of bilateral, regional, or multilateral agreements, as appropriate.
• d)Immediately notify States potentially affected by imminent or grave dangers to biological diversity, or damage to such diversity, arising under its jurisdiction or control in areas under the jurisdiction of other States or in areas beyond the limits of national jurisdiction, and initiate measures to prevent or minimize such dangers or damage. And e) Promote national arrangements for emergency measures relating to activities or events, whether natural or otherwise, that pose grave and imminent dangers to biological diversity; support international cooperation to supplement such national measures; and, where appropriate and with the agreement of the States or regional economic integration organizations concerned, establish joint contingency plans.

1. 2On the basis of studies to be conducted, the Conference of the Parties shall examine the issue of liability and redress, including restoration and compensation for damage caused to biological diversity, except where such liability is a purely internal matter” (emphasis added).

The aggregate of a country’s protected areas, regardless of their management category (categoría de gestión) or management or governance system, is understood as its protected-area system (sistema de áreas protegidas). This system is intended to achieve national conservation objectives and, for those purposes, has several characteristics, namely: i) representativeness, comprehensiveness, and balance; ii) adequacy; iii) coherence and complementarity; iv) consistency; v) cost-effectiveness, efficiency, and equity; vi) persistence; and vii) resilience.

At both the global and national levels, management categories (categorías de manejo) have been created for protected wild areas (áreas silvestres protegidas). These categories are highly relevant to fulfilling the specific management purposes of each protected wild area because they assist in organizing efforts to achieve conservation objectives. In this regard, the Procuraduría General de la República, in opinion no. C-016-2002 of 15 de enero de 2002, explains that: “(…) even (sic) though our current legislation contains no technical definition of a protective zone (zona protectora), the mere classification of management categories made by Article 32 of Law No. 7554 necessarily suggests that differences do exist among them; otherwise, it would have been sufficient to establish a single protected-wild-area regime. And it is logical that this should be so, because each wild area has its own biological, edaphic, hydrological, and other characteristics that make it deserving of a particular treatment regime defined by its assigned management category” (emphasis added).

Thus, management categories have particular features that distinguish them from one another, such as their biological, edaphic, and hydrological specificities, as well as the various prescribed forms of administration, management, planning, uses, and prohibitions, all of which relate both to the authorized level of human intervention and to the level of protection afforded to the corresponding geographical area.

In turn, because the management categories of protected wild areas are recognized as such, they pursue certain common objectives, for example: i) conserving biodiversity; ii) supporting regional conservation strategies; iii) maintaining the diversity of associated habitats, species, and ecosystems; iv) ensuring long-term integrity and maintenance in order to achieve conservation objectives; v) maintaining the established values; vi) adhering to the assigned management plan (plan de gestión); and vii) having a specific management system.

In Costa Rica, Article 35 of Law No. 7554 of October 4, 1995, known as the ‘Ley Orgánica del Ambiente,’ specifies the objectives for the establishment, conservation, administration, development, and oversight of protected areas (áreas protegidas), which naturally encompass all management categories (categorías de manejo) of protected wild areas (áreas silvestres protegidas), namely: i) to conserve natural environments representative of the different biogeographic regions and the most fragile ecosystems, in order to ensure the balance and continuity of evolutionary and ecological processes; ii) to safeguard the genetic diversity of the wild species upon which evolutionary continuity depends, particularly endemic, threatened, or endangered species; iii) to ensure the sustainable use of ecosystems and their components, encouraging the active participation of neighboring communities; iv) to promote scientific research, the study of ecosystems and their equilibrium, as well as knowledge and technologies that permit the sustainable use and conservation of the country’s natural resources; v) to protect and improve aquifer zones and watersheds, in order to reduce and prevent the adverse effects that may result from their mismanagement; and vi) to protect the natural and scenic surroundings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.

To achieve these objectives, Executive Decree No. 34433 of March 11, 2008, ‘Reglamento a la Ley de Biodiversidad,’ provides that the “General management plan (Plan general de manejo): Is the planning instrument that guides the management of a protected wild area toward fulfillment of its long-term conservation objectives. It is based on medium-term strategic courses of action and management objectives for the natural and cultural features included within the area, as well as on the relationship between those features and their socio-environmental surroundings. It is the basis for developing other planning and regulatory instruments for Protected Wild Areas.” The aforementioned general management plan includes various management components, including the mission, vision, and conservation objectives of the protected wild area; an assessment of the protected wild area and its surroundings; management programs; threat and risk analyses; and organization of the land area according to the characteristics of the ecosystem, species, and prohibited and authorized activities.

Regarding the management categories of protected wild areas, the IUCN has identified the following: Ia) strict nature reserve, Ib) wilderness area, II) national park, III) monument, IV) habitat/species management areas, V) protected landscape, and VI) protected area with sustainable use of natural resources.

Strict nature reserves are understood as “strictly protected areas set aside to protect biodiversity and geological/geomorphological features, in which visitation, use, and impacts are strictly controlled and limited to ensure the protection of conservation values. These protected areas may serve as indispensable reference areas for scientific research and monitoring.” Category Ib wilderness areas, meanwhile, are defined as “large unmodified or slightly modified areas that retain their natural character and influence, without significant or permanent human habitation, and that are protected and managed so as to preserve their natural condition.” The IUCN conceptualizes national parks as “large natural or near-natural areas established to protect large-scale ecological processes, together with the complement of species and ecosystems characteristic of the area, which also provide a foundation for environmentally and culturally compatible spiritual, scientific, educational, recreational, and visitor opportunities.” The objectives assigned to this type of protected wild area include protecting biodiversity and environmental processes, as well as promoting education and recreational use.

Category III, a natural monument or feature, refers to protected areas that “are established to protect a specific natural monument, which may be a landform, a seamount, a submarine cavern, a geological feature such as a cave, or even a living feature such as an ancient grove. They are generally fairly small protected areas and often have great value for visitors.” Habitat/species management areas, in turn, have the objective of “protecting particular species or habitats, and their management reflects that priority. Many Category IV protected areas will require regular active interventions to address the needs of particular species or to maintain habitats, but this is not a requirement of the category.” A protected terrestrial/marine landscape, for its part, is “A protected area in which the interaction between humans and nature has produced an area of distinctive character with significant ecological, biological, cultural, and aesthetic values; and in which safeguarding the integrity of that interaction is vital to protecting and maintaining the area, conserving its natural character, and preserving its other values.” Finally, protected areas with sustainable use of natural resources “conserve ecosystems and habitats, together with the associated cultural values and traditional natural-resource management systems.

They are generally extensive, with most of the area remaining in a natural condition, while a portion is subject to sustainable natural-resource management, and in which low-level, non-industrial use of natural resources compatible with nature conservation is considered one of the area’s principal objectives.” In Costa Rica specifically, Section 32 of the Ley Orgánica del Ambiente classifies the management categories of protected wild areas as follows: i) forest reserves, ii) protection zones, iii) national parks, iv) biological reserves, v) national wildlife refuges, vi) wetlands, and vii) national monuments. In furtherance thereof, the Reglamento a la Ley de Biodiversidad sets forth the definitions of these categories.

A forest reserve (reserva forestal) comprises geographical areas consisting of forests or lands suitable for forestry, whose primary purpose is to protect forest genetic resources in order to ensure the sustainable national production of forest resources over the long term, as well as forestlands that, by their nature, are especially suitable for that purpose.

Protection zones (zonas protectoras), on the other hand, refer to geographical areas consisting of forests or lands suitable for forestry, in which the primary objective is to regulate the hydrological regime and protect the soil and watersheds. Pursuant to Section 52 of the Ley Orgánica del Ambiente, the purposes of this management category include “the preservation of aquifer-recharge areas and water sources, and the need to ensure the population’s water supply for present and future generations.” Furthermore, given their characteristics, private ownership may exist within this management category, since the State is not required to purchase or expropriate the land. In addition, owners within a protection zone are authorized to carry out a range of activities on their land, including ecotourism, research, education, construction of public works, and the granting of concessions and permits, provided that such activities are compatible with the general management plan for that management category.

National parks, in turn, are understood as nationally significant geographical areas—terrestrial, marine, coastal-marine, freshwater, or a combination thereof—established to protect and conserve natural beauty and biodiversity, as well as for public enjoyment. These areas contain one or more ecosystems in which the species, habitats, and geomorphological sites are of particular scientific, cultural, educational, and recreational interest, or they contain a natural landscape of great beauty.

On this point, Article 2 of the ‘Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America’ defines national parks as regions designated for the protection and conservation of natural beauty and nationally significant flora and fauna, which the public may better enjoy by placing them under official supervision. It also emphasizes that the resources existing in these protected wild areas may not be commercially exploited and that the States agree to prohibit “the hunting, killing, and capture of specimens of fauna and the destruction and collection of specimens of flora in national parks, except when carried out by park authorities, by their order or under their supervision, or for duly authorized scientific research.” Under Section 8 of Law No. 6084 of August 24, 1977, ‘Ley del Servicio de Parques Nacionales,’ visitors to that category of protected wild area are prohibited from: i) cutting down trees and extracting plants or any other forest product; ii) hunting or capturing wildlife, or collecting or extracting any products or remains thereof; iii) hunting turtles of any species and collecting or extracting their eggs or any type of product or remains thereof; iv) scratching, marking, staining, or causing any type of damage or deterioration to plants, equipment, or facilities; v) engaging in sport, artisanal, or industrial fishing, except as provided in Section 10; vi) collecting or extracting coral, shells, rocks, or any other marine product or debris; vii) collecting or extracting rocks, minerals, fossils, or any other geological product; viii) carrying firearms, harpoons, or any other instrument that may be used for hunting; ix) introducing exotic animals or plants; x) grazing or watering livestock, or keeping bees; xi) causing any type of environmental pollution; xii) extracting stones, sand, gravel, or similar materials; xiii) feeding or giving water to animals; xiv) constructing electrical or telephone transmission lines, aqueducts, highways, or railways; and xv) engaging in any type of commercial, agricultural, or industrial activity.

Likewise, Article 11 eiusdem prohibits the creation of easements (servidumbres) benefiting other parcels of land, while Section 12 provides that no concessions of any kind may be granted for the exploitation of products from national parks, nor may permission be granted to establish facilities other than those of the Service.

Regarding sport and artisanal fishing in national parks, Section 10 eiusdem provides: “Following a favorable opinion from the council, the Service may authorize sport and artisanal fishing in designated areas of national parks when it is established that such activities will not cause ecological alterations.” Regarding fishing activity, Law No. 8436 of March 1, 2005, ‘Ley de Pesca y Acuicultura,’ provides:

“Article 9—Commercial fishing and sport fishing are prohibited in national parks, natural monuments, and biological reserves.

Fishing activity on the mainland and islands, in forest reserves (reservas forestales), protective zones (zonas protectoras), national wildlife refuges (refugios nacionales de vida silvestre), and wetlands (humedales), shall be restricted in accordance with the management plans (planes de manejo) established for each zone by the Ministerio de Ambiente y Energía (MINAE), within the scope of its authority. To create or expand protected zones (zonas protegidas) encompassing marine areas, except those approved by the Asamblea Legislativa in accordance with the laws in force, the Ministry shall consult INCOPESCA regarding the sustainable use of biological resources in those zones.

The opinion issued by INCOPESCA shall be based on technical, social, economic, scientific, and ecological criteria and shall be issued within thirty calendar days from the date the consultation is received.

Monitoring of fishing in the protected wildlands (áreas silvestres protegidas) identified in this article shall be the responsibility of MINAE, which may coordinate operations with the Servicio Nacional de Guardacostas.

Vessels shall be permitted to remain in protected areas, whether or not they include a marine portion, in cases of unforeseen circumstances (caso fortuito) and force majeure (fuerza mayor), for as long as such circumstances persist.

MINAE and INCOPESCA may jointly authorize the transit or anchoring of vessels in protected areas when strictly required by natural conditions (…)

Article 13.-INCOPESCA shall oversee fishing and aquaculture activities conducted in marine and inland waters and shall provide technical assistance for aquaculture activities in continental and marine waters. In continental waters, the protection of aquatic resources shall be the responsibility of MINAE. Such waters shall include rivers and their mouths, lakes, lagoons, and reservoirs, including areas declared to be forest reserves, protective zones, national parks, mangroves, wetlands, biological reserves (reservas biológicas), national wildlife refuges, and natural monuments (monumentos naturales), in accordance with the legislation in force and the provisions of ratified international treaties, particularly RAMSAR.

MINAE and INCOPESCA are authorized, by mutual agreement, to establish and approve joint management plans for marine wetland resources to ensure the rational use of aquatic resources, except in wetlands located within national parks and biological reserves (…)

Article 48.-Licenses to harvest shrimp commercially in the Caribbean Sea shall be permitted in accordance with the technical and scientific criteria issued by the implementing authority (autoridad ejecutora). No licenses shall be granted for harvesting in national parks or other protected areas.” With respect to biological reserves, these are geographical areas containing terrestrial, marine, marine-coastal, or freshwater ecosystems, or a combination thereof, and species of particular conservation interest. Their principal purposes include conservation, the protection of biodiversity, and research. Consequently, agricultural, tourism, commercial, and industrial activities are prohibited therein.

National wildlife refuges are conceived as geographical areas containing terrestrial, marine, marine-coastal, or freshwater ecosystems, or a combination thereof. Their principal purposes include conservation, research, and the enhancement and management of wild flora and fauna, particularly those at risk of extinction.

It should be noted that this type of management category (categoría de manejo) may be: i) State-owned, in which case they are public-domain assets (bienes demaniales) and their administration falls exclusively to SINAC. Conservation, research, and the management of wild flora and fauna prevail therein, particularly with respect to species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. Furthermore, only research, training, and ecotourism activities are permitted. ii) Privately owned, where the land belongs to private parties and is administered by its owners under SINAC supervision. Privately owned refuges are intended for the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species.

Additionally, only productive activities permitted under the Reglamento de la Ley de Conservación de la Vida Silvestre may be carried out in this type of refuge. iii) Mixed ownership, where one portion of the geographical area belongs to the State and another to private parties, such that administration is shared. This type of refuge is intended for the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. Because of its mixed nature, only the activities specified for State-owned refuges may be conducted on State-owned land, while the activities authorized for privately owned refuges may be conducted on privately owned land.

Wetlands are geographical areas encompassing ecosystems of national importance that depend upon natural or artificial, permanent or temporary, lentic or lotic, fresh, brackish, or saltwater regimes, including marine expanses extending to the outer limit of marine phanerogams or coral reefs or, in their absence, to a depth of six meters at low tide. Their primary function is to protect those ecosystems in order to ensure the maintenance of their ecological functions and the provision of environmental goods and services. Furthermore, under article 41 of the Ley Orgánica del Ambiente, wetlands and their conservation are matters of public interest, regardless of whether they are protected by laws governing the subject. For its part, section 7 of the Ley de Conservación de la Vida Silvestre includes among SINAC’s functions that of “Protecting, supervising, and administering wetlands under an ecosystem-based approach, as well as determining whether they qualify as being of national or international importance.” Educational, research, ecotourism, water-use, and forest-harvesting activities, among others, may be conducted in this type of protected wildland.

Lastly, national monuments are geographical areas comprising one or more natural features of national or cantonal importance, created by MINAE and administered by the respective municipalities. This management category includes natural places or objects whose unique or exceptional character, scenic beauty, or scientific value makes it necessary to place them under a protection regime (régimen de protección).

It follows from the foregoing that the various management categories for protected wildlands share several objectives, chief among which is naturally conservation; however, they also have specific features that distinguish them and explain their classification, such as the particular purposes pursued by each category—and which scientifically distinguish them from one another—as well as their respective administrative, planning, use, and prohibition regimes. Therefore, before defining the management category to be assigned to a particular geographical area that will become a protected wildland, it is essential to consider its particular characteristics and protection requirements, as well as the principal management objectives of the various categories, in order to determine which is most compatible with the area intended to be designated. In other words, before establishing the type of category to be assigned to a particular area, it is essential to analyze whether the specific management objective is compatible with factors such as the ecosystem’s needs and threats and the species present in the geographical area concerned.

Specifically, the IUCN World Commission on Protected Areas has identified several matters requiring technical studies before a particular management category is assigned to a geographical area, including: i) studying the ecological needs of the ecosystem and species; ii) identifying potential threats; iii) analyzing the objectives of the protected area and the applicable international designations; iv) conducting a review process for management categories; v) preventing adverse consequences for the ecosystem and species; vi) assessing both the seascape and the terrestrial landscape; vii) considering the views of directly involved stakeholders; among others.

For its part, the Ley Orgánica del Ambiente establishes the following requirements for creating protected wildlands: i) conducting preliminary physiographic, biological-diversity, and socioeconomic studies supporting their creation; ii) defining the area’s objectives and location; iii) examining technical feasibility and land tenure (tenencia de la tierra); iv) securing the minimum funding required to acquire, protect, and manage the area; v) preparing the plans; and vi) issuing the corresponding decree or law.

Accordingly, we consider it fully established that the creation of protected wildlands and the assignment of the respective management plan are not matters left to the State’s unfettered discretion. Rather, a series of requirements must be observed, including environmental scientific studies, the determination of objectives and minimum funding, and socioeconomic, geographical, geological, and topographical analyses, among others. These requirements are necessary to ensure that the distinctive features and specific objectives of a particular zone are the decisive factors in defining the type of administration, planning, uses, and prohibitions to be imposed within the corresponding geographical area.

Consistent with the position set forth above, and with respect to the reduction of protected wildlands, this Court stated in judgment no. 2019000673 at 12:00 hours on January 16, 2019:

“V.-Case law concerning the reduction of protected areas, the sufficiency of technical reports, and proper compensation.-Regarding the reduction of protected zones, the case law of this Chamber establishes the following:

1. Constitutional requirements for reducing a protected wildland (statutory reservation (reserva legal) and technical studies): In support of article 38 of the Ley Orgánica del Ambiente (“the surface area of protected wildlands, which constitute the State’s natural heritage (patrimonio natural del Estado), regardless of their management category, may only (sic) be reduced by a Law of the Republic, after conducting technical studies justifying that measure”), there has been a well-established line of case law holding that the reduction of a protected wildland, under any of its management categories—including national wildlife refuges—must satisfy two essential requirements: “by means of a law and following the completion of sufficient technical studies justifying the measure.” (Sala Constitucional, judgments numbers 13367-2012 and 010158-2013. Similarly, judgments numbers 7294-1998, 11155-2007, 1056-2009, 18702-2010 and 14772-2010, among others). As stated in the aforementioned 1998 decision:

““(…) once a given area has been declared a protected zone (zona protectora) by an act of the State, the State cannot simply declassify it (desafectarlo), in whole or in part, in order to protect other interests—public or private—to the detriment of the enjoyment of a healthy environment, in accordance with the provisions of Article 50 of the Constitution. However, the fact that a provision, whatever its rank, has declared a given area to be a protected zone does not mean that an immutable zone has been established, such that its area may under no circumstances be reduced by subsequent legislation. Nevertheless, it must be borne in mind that the declaration and delimitation of a protected zone, in compliance with Article 50 of the Constitution, entails the protection of the fundamental right to the environment and, therefore, any reduction in its area must not impair that right, a matter that must be determined in each specific case.

The fact that a subsequent law reduces the area of a protected zone, a forest reserve (reserva forestal), a National Park, or any other site of environmental interest is not necessarily unconstitutional, provided that it is justified and does not violate the right to the environment. It may be that, owing to various circumstances, a particular site has lost, at least in part, the environmental interest that originally led to its designation; once the relevant studies have been conducted, this would justify its modification or reduction, all in application of the principle of constitutional reasonableness…” (voto No. 7294-1998).

Specifically regarding the statutory reservation (reserva legal) in this matter, voto No.14772-2010 stated:

(…) the public purpose of public-domain property (bien del demanio público) cannot be modified without a legislative act; that is, the reduction of the area of a protected zone is subject to the safeguard provided by the principle of reservation of law (principio de reserva de ley). Although, pursuant to Article 36 of the Ley Orgánica del Ambiente, the Executive Branch is authorized to establish Protected Wilderness Areas (Áreas Silvestre Protegidas) upon compliance with the requirements set forth in that provision—as Parque Nacional Corcovado was established by Decretos Ejecutivos No. 5357-A del 24 de octubre de 1975 y 1148-A del 5 de febrero de 1980—its modification may be effected only in accordance with Article 38 of the Ley Orgánica del Ambiente, following technical and scientific studies, and by means of a legislative act. (emphasis not in the original).

Likewise, sentencia no.1056-2009 indicated that a reduction is possible only by law:

“when the boundaries of protected zones within the State’s forest heritage (patrimonio forestal del Estado) are expanded, this may be done by regulation; however, when they are reduced, this may be done only by law, provided, of course, that there is a prior assessment justifying the measure.” (Sentencia de la Sala Constitucional Nº 1056-2009) This was applied when the Chamber declared unconstitutional the regulatory provision (Decreto Ejecutivo Nº 32753-MINAE) through which the Executive Branch reduced the territory of Refugio Gandoca-Manzanillo, removing the Refuge’s urban zone from both the area and the protection regime.

Furthermore, with respect to the studies, they must be prior, sufficient, necessary, and individualized—as indicated in the following section. That same 1998 decision stated:

“According to the foregoing, mutatis mutandi, if, in order to create a protected wilderness area (área silvestre protectora), the Legislative Assembly established by law that specific requirements must be met to determine whether the designation (afectación) in question is justified, it logically follows that certain requirements—such as conducting technical environmental studies—must also be met for its partial or total declassification (desafectación), in order to determine that the declassification does not violate the substance of Article 50 of the Constitution. In this regard, we may speak of degrees of declassification. Thus, not every declassification of a protected zone is unconstitutional, insofar as it does not impair or threaten the right to the environment. Consequently, to reduce any protected wilderness area, the Legislative Assembly must do so on the basis of sufficient and necessary technical studies establishing that the environment will neither be harmed nor placed at risk and, therefore, that the substance of Article 50 of the Constitution is not violated.

The principle of reasonableness, in relation to the fundamental right to the environment, requires that provisions enacted on this subject be duly supported by serious technical studies, even if no other legislation expressly so requires. In the opinion of this Constitutional Court, the requirement contained in Article 38 of Ley Orgánica del Ambiente No. 7554—that, before a protected wilderness area may be reduced by formal law, technical studies justifying the measure must first be conducted—is nothing more than the concrete embodiment of the principle of reasonableness in matters of environmental protection.” (emphasis not in the original).

2. Technical study as a scientific and individualized analysis: The Chamber has addressed the sufficiency of a technical study, holding in several decisions that such a study must constitute a scientific and individualized analysis. It stated as follows:

“the requirement for technical studies is not a mere formality but a substantive requirement; that is, the degree of environmental impact of the relevant measure must be substantively demonstrated through a scientific and individualized analysis, recommendations aimed at mitigating its adverse environmental impact must be presented, and it must be shown how that measure entails development that meets the needs of the present without jeopardizing the ability of future generations to meet their own needs.” (Voto No. 13367-2012. See also No. 10158-2013).

It follows that the technical study required by Article 38 of the Ley Orgánica del Ambiente, which constitutes the concrete embodiment of the constitutional principle of reasonableness in matters of environmental protection, requires a technical analysis entailing an individualized analysis, which must include, at a minimum, the following matters:

The degree of environmental impact of the relevant measure; Recommendations aimed at mitigating the adverse environmental impact; A demonstration of how the measure adopted entails development that meets the needs of the present without jeopardizing the ability of future generations to meet their own needs.

In summary, that prior study must demonstrate that the declassification is consistent with the constitutional protection of the right to the environment, because, as stated in voto no. 18702-2010, “areas of this nature cannot be permitted to be titled indiscriminately, since this would run counter to the very environmental conservation policies pursued by the State pursuant to the mandates established by the Constitución Política and the International Conventions it has signed.” 3. Compensatory measures (medidas de compensación): A protected area may be reduced only if this is done by law, if technical and scientific studies rule out environmental harm, and if the removed area is offset by another area of equal size. There can be no doubt that all provisions reducing protected areas without the support of technical studies or any compensation whatsoever are unconstitutional” (voto Nos. 12887-2014, 2773-2014, 2012-13367 y 2009-1056).

VI.On the challenged provisions.- As can be seen, both the Law Regulating the Creation and Development of the Las Tablillas Border Post, Ley No. 8803, and its Regulations are challenged in their entirety, essentially for two reasons: because there is no technical study (estudio técnico) supporting the reduction of a protected area (área protegida)—in this case, a national wildlife refuge (refugio nacional de vida silvestre)—and because no compensation measures (medidas de compensación) were established. Each of these claims is examined separately. REGARDING THE TECHNICAL STUDY: The petitioner states that the challenged Law and its Regulations segregate and reduce several hectares of the Refugio Nacional de Vida Silvestres de la zona fronteriza without any environmental studies justifying that action. The petitioner states that the legislators relied on a mere recommendation that could never be regarded as a serious, thorough, and comprehensive study permitting what was done.

In its report, the Procuraduría General de la República states that, in Legal Opinion No. O.J.-98-2009 issued by that Office on October 14, 2009, in response to a consultation from the legislators during consideration of the bill that culminated in Ley No. 8803, it had already analyzed the technical study then included in the case file and deemed it insufficient to justify the measure: “…it must respectfully be noted that said technical report does not meet the requirements necessary to support the bill under consultation. It should be noted that it examines the 236 hectares initially proposed and concludes that the project is not environmentally or socially viable. However, said study does not explain in any way why that negative impact would not occur on the proposed 13 hectares or, in other words, to date there is no technical opinion addressing the reasons why the segregation (segregación) of the 12.3 hectares established in the bill under consultation would be viable…”.

The Ministro de Ambiente y Energía states that there is no unconstitutionality. He adds that the challenged law was not intended to remove the area in question from the public domain (dominio público), but rather to authorize the use of a portion of the area for another public-interest purpose, namely the installation of a border and customs post, on the understanding that the structures would be public rather than private. Thus, on September 28, 2007, the commission handling the Tablillas matter issued a technical report entitled “Solicitud de reducción del área del Refugio Nacional Corredor Fronterizo,” which proposed removing an area of 13 ha adjacent to the border line from its protected designation (desafectar), because officials of the Área de Conservación Arenal Huetar Norte considered the segregation of the stated 236 ha area unviable. The report concluded that: “13 hectares would be a more viable proposal from the standpoint of its impact on the ecosystems present at the site and in the surrounding area.” That report considered biophysical, socioeconomic, and security factors.

It concludes that the cost-benefit balance of establishing posts to control and regulate migration into that sector helps regulate entry through the public-domain strip coinciding with the Área Silvestre Protegida. The Ministros de la Presidencia y de Comercio Exterior state that the technical report prepared by MINAE in September 2007 appears at pages 76 through 94 of the legislative record. The identified site is suitable for development of the Border Post project because it had already been affected by human activity, as demonstrated by the absence of important or fragile ecosystems, primary or secondary forest cover (cobertura boscosa), wetlands, or watercourses, with only natural pasture and cleared land under cultivation or ready for planting. Furthermore, the area is strategically suitable from a technical standpoint for locating the Border Post because of its proximity to the border line and the existence of transportation routes for domestic travel (roads), as well as a national highway connected to the road on the Nicaraguan side of the border.

In this regard, this Chamber concludes that the Procuraduría General de la República is indeed correct in its report: there is no technical study addressing the viability of this project, because the study that was conducted concerned a larger area and concluded that the project was not environmentally or socially viable. It was therefore necessary to explain why the new proposal would not cause problems for the wetlands, local species, and aquifers or create the social problems identified in the initial proposal. The technical study cited by the Ministers is plainly insufficient because it does not explain in any way why that negative impact would not occur on the proposed 13 hectares, the degree of environmental impact of the corresponding measure, the recommendations intended to mitigate its negative environmental impact, or how the measure entails development that meets present needs without jeopardizing the ability of future generations to meet their own needs.

Moreover, although it may be true, as the Ministers state in their report, that the property is not leaving the public domain, it is nevertheless true that its environmental protection designation is being removed. It may also be true, as the Ministers state in their report, that in addition to the environmental interest in the border area, there may be other relevant interests, such as migration security and others. However, this is precisely what the technical report should have addressed in its supporting rationale. It should be noted that, as the Ministers indicate, certain environmental measures may have been taken; nevertheless, this does not negate the absence of the technical report that should have supported the law, leaving those environmental measures without the required technical basis. Accordingly, the alleged unconstitutionality of the challenged law—and, by connection, of its Regulations—is established due to the absence of a sufficient technical report supporting the reduction of the Refugio Nacional de Vida Silvestre de la zona fronteriza.

REGARDING COMPENSATION MEASURES: The petitioner states that the law failed to establish timely compensation measures in response to the ordered segregation. In its report, the Procuraduría General de la República states that a finding of unconstitutionality for violation of this principle would not necessarily require annulment of the Law; if characterized as unconstitutionality by omission (inconstitucionalidad por omisión), it would suffice for the Sala Constitucional to order in its judgment that the portion or portions compensating for the removed area be added to the Refuge, which could even be done through regulations. The Ministros de la Presidencia y de Comercio Exterior state that the requested demolition of the public infrastructure would immediately leave public order, peace, health, sustainable development, life, and human dignity unprotected. They further consider that the State has no obligation to compensate for an already deforested and affected area with another area, given that there was never any forest reduction or environmental harm that would justify compensation.

In this regard, this Chamber concludes that the challenged provisions are indeed also silent regarding compensation measures. Given the evident segregation of approximately 13 hectares, as stated in Article 1 of the challenged law, and although they (sic) did not leave the public domain, they did cease to fall within an environmental management category (categoría de manejo ambiental), which required the establishment of statutory compensation measures that, as is apparent from a reading of the entire law, were neither adopted nor guaranteed. Accordingly, the alleged unconstitutionality of the challenged law—and, by connection, of its Regulations—is established due to the absence of measures compensating for the reduction of the Refugio Nacional de Vida Silvestre de la zona fronteriza.

VII.Conclusion.- This Chamber’s consistent case law establishes that any reduction of a protected wilderness area (área silvestre protegida), under any of its management categories (categorías de manejo), including national wildlife refuges, must satisfy three essential requirements: statutory reservation (reserva legal) (that is, it may be done only (sic) by law), the prior completion of sufficient technical studies justifying the measure, and the establishment of compensation measures. In this case, it was established that the Law Regulating the Creation and Development of the Las Tablillas Border Post (Ley No. 8803) and its Regulations segregated, and consequently reduced, the Refugio Nacional de Vida Silvestre de la zona fronteriza. However, although this was done by means of a law, no sufficient prior study was conducted that justified the measure; established the degree of its environmental impact; provided recommendations intended to mitigate its negative environmental impact; demonstrated how the measure entails development that meets present needs without jeopardizing the ability of future generations to meet their own needs; or established specific and detailed compensation measures.

All of this establishes unconstitutionality by omission. Accordingly, the action is upheld in this case, with the effects of this judgment being tailored (dimensionamiento de esta sentencia) as indicated” (emphasis added).

In other words, a qualitative or quantitative reduction of a protected wilderness area is constitutionally valid provided that: i) it is carried out by means of a law; ii) appropriate, sufficient, and individualized scientific studies have been obtained beforehand; and iii) compensation measures are adopted.

It should be noted that the management category assigned to a particular geographical area may also cease to be compatible with its designated conservation objectives and that, as a result, it may become necessary to change that category. For this purpose, as the UICN maintains, a process as stringent as the one initially used to create the protected wilderness area at issue in this action and assign its corresponding management category must be followed. In this regard, Article 59 of the Ley de Biodiversidad (nro. 7788 del 30 de abril de 1998) provides that SINAC may recommend upgrading the category of protected wilderness areas, for which purpose it must comply with the Ley Orgánica del Ambiente.

It is therefore permissible to change the management category assigned to a protected wilderness area. When such a change entails upgrading the management category, the upgrade may be made by executive decree (decreto ejecutivo) or by law; however, if the intended result is a qualitative or quantitative reduction of the protected wilderness area, the procedure must necessarily be carried out by law and the corresponding compensation must be provided.

It should now be noted that, pursuant to the Ley de Biodiversidad, ownership of protected wilderness areas may be State, municipal, private, or mixed. It further provides that, given the importance of protected wilderness areas to the country’s conservation and sustainable use, both MINAE and public entities must encourage their creation and oversee and assist in their management.—see section 60 of that statutory instrument.

The significance of protected wild areas (áreas silvestres protegidas) is such that the legislature provided in Article 61 of the Biodiversity Law that MINAE, together with the Ministry of Finance, must include in the national budgets the respective transfers to the trust or the financial mechanisms for protected areas, in order to ensure, at a minimum, the personnel and resources determined by SINAC to be necessary for the operation and integrity of state-owned protected wild areas, as well as for the permanent protection of biological reserves, national parks, and other state-owned protected wild areas.

In addition to the foregoing, it should be noted that Article 37 of the Organic Law of the Environment authorizes the Executive Branch to: i) include within the boundaries of protected wild areas all or part of privately owned properties that are necessary to fulfill the objectives established in the legal system and in the management plan (plan de manejo); and ii) create statutory easements (servidumbres legales) to guarantee ecological protection and compliance with the law. It also provides that, in the case of national parks, biological reserves, or state-owned national wildlife refuges, the land shall be acquired through purchase, expropriation, or both, subject to prior compensation, since their conservation and management objectives are incompatible with private ownership.

In the case of forest reserves, protective zones, mixed wildlife refuges, and wetlands, the purchase or expropriation of the land is authorized unless the owner voluntarily places it under the forestry regime (régimen forestal). In addition, that provision clarifies that: “Privately owned properties affected pursuant to this Article because they are located in national parks, biological reserves, wildlife refuges, forest reserves, and protective zones shall be included within state-owned protected areas only from the time they have been paid for or lawfully expropriated, except when they are voluntarily placed under the Forestry Regime. In the case of forest reserves, protective zones, and wildlife refuges, if payment or expropriation has not taken place and while it is pending, the areas shall be subject to an environmental land-use plan (plan de ordenamiento ambiental), which includes an environmental impact assessment (evaluación de impacto ambiental), and subsequently to the plan for the management, recovery, and replenishment of resources.” It should be noted that, with respect to marine protected areas, no private-property regime exists because the sea is a public-domain asset (bien demanial); therefore, the State is responsible for administering the assets and resources of that zone and, consequently, their use and exploitation must be regulated.

In sum, protected wild areas may be classified into management or governance categories (categorías de manejo o de gestión), each of which pursues different conservation objectives based on its particular qualities. Accordingly, when assigning a category to a specific geographical area, priority must be given to its connection with achieving the primary objectives of the corresponding category and to consideration of those qualities. For these purposes, the relevant scientific studies are indispensable, particularly because, although management categories promote conservation, not all of them are compatible with the inherent characteristics of every specific geographical area.

II.On cultural heritage (patrimonio cultural). First, it should be observed that Article 89 of the Constitution provides: “The cultural purposes of the Republic include: protecting natural beauty, preserving and developing the Nation’s historical and artistic heritage, and supporting private initiative for scientific and artistic progress.” Second, it should be emphasized that the ‘Convention Concerning the Protection of the World Cultural and Natural Heritage,’ approved by Law No. 5980 of November 16, 1976, provides:

“Article 1.-For the purposes of this Convention, the following shall be considered ‘Cultural Heritage’:

Monuments: Architectural works, works of monumental sculpture or painting, elements or structures of an archaeological nature, inscriptions, caves, and groups of elements that are of outstanding universal value from the standpoint of the history of art or science.

Groups of buildings: Groups of separate or connected buildings whose architecture, unity, or integration into the landscape gives them outstanding universal value from the standpoint of history, art, or science.

Sites: Works of man or the combined works of man and nature, as well as areas, including archaeological sites, that are of outstanding universal value from the historical, aesthetic, ethnological, or anthropological standpoint.

Article 2.-For the purposes of this Convention, the following shall be considered ‘Natural Heritage’ (patrimonio natural):

Natural features consisting of physical and biological formations or groups of such formations that are of outstanding universal value from the aesthetic or scientific standpoint.

Geological or physiographical formations and precisely delineated areas that constitute the habitat [sic] of threatened animal and plant species and are of outstanding universal value from the aesthetic or scientific standpoint.

Natural sites or precisely delineated natural areas that are of outstanding universal value from the standpoint of science or the conservation of natural beauty (…)

Article 4.-Each State Party to this Convention recognizes that the duty of identifying, protecting, conserving, restoring, and transmitting to future generations the cultural and natural heritage situated within its territory belongs primarily to that State. It shall endeavor to act for that purpose through its own efforts and to the fullest extent of its available resources and, where appropriate, through any international assistance and cooperation from which it may benefit, particularly in financial, artistic, scientific, and technical matters.

Article 5.-To ensure the effective protection and conservation, and the most active possible enhancement, of the cultural and natural heritage situated within its territory, under conditions appropriate to each country, each State Party to this Convention shall endeavor, insofar as possible:

• a)To adopt a general policy aimed at giving the cultural and natural heritage a function in the life of the community and integrating the protection of that heritage into comprehensive planning programs; b) To establish within its territory, where they do not exist, one or more services for the protection, conservation, and enhancement of cultural and natural heritage, staffed with appropriate personnel and provided with the means necessary to perform their duties; c) To develop scientific and technical studies and research and to improve the methods of intervention that enable a State to address the dangers threatening its cultural and natural heritage; d) To adopt appropriate legal, scientific, technical, administrative, and financial measures to identify, protect, conserve, enhance, and restore that heritage; and e) To facilitate the creation or development of national or regional training centers in the protection, conservation, and enhancement of cultural heritage and to encourage scientific research in this field.

Article 6.- 1.-While fully respecting the sovereignty of the States within whose territories the cultural and natural heritage referred to in Articles 1 and 2 is situated, and without prejudice to the property rights provided for under national legislation concerning that heritage, the States Parties to this Convention recognize that it constitutes a universal heritage whose protection is the duty of the international community as a whole to cooperate in securing.

1. 2The States Parties accordingly undertake, in conformity with the provisions of this Convention, to provide assistance in identifying, protecting, conserving, and enhancing the cultural and natural heritage referred to in Article 11, paragraphs 2 and 4, if requested by the State within whose territory it is situated.
2. 3Each State Party to this Convention undertakes not to take any deliberate measure that might directly or indirectly damage the cultural and natural heritage referred to in Articles 1 and 2 situated within the territory of other States Parties to this Convention.

Article 7.-For the purposes of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international cooperation and assistance designed to support the States Parties to the Convention in their efforts to conserve and identify this heritage” (emphasis added).

This means that the Costa Rican State committed itself to protecting cultural and natural heritage; to that end, it must, among other things, carry out the actions necessary to “identify, protect, conserve, restore, and transmit to future generations the cultural and natural heritage.” In other words, the State must take actions aimed at guaranteeing the protection and conservation of cultural and natural heritage, as well as its restoration, all for the purpose of ensuring its preservation.

For its part, Law No. 6360 of September 5, 1979, approved the ‘Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations,’ which provides:

“ARTICLE 1 The purpose of this Convention is to identify, register, protect, and safeguard the property constituting the cultural heritage of the American nations, in order to: a) prevent the unlawful export or import of cultural property (bienes culturales), and b) promote cooperation among the American States for the mutual knowledge and appreciation of their cultural property.

ARTICLE 2 The cultural property referred to in the preceding Article consists of property included within the following categories:

• a)monuments, objects, fragments of dismembered buildings, and archaeological material belonging to American cultures predating contact with European culture, as well as the human, fauna, and flora remains associated with them; b) monuments, buildings, and artistic, utilitarian, or ethnological objects, whether intact or dismembered, from the colonial period, as well as those from the nineteenth century; c) libraries and archives; incunabula, books and other publications, iconographic materials, maps, and documents published up to the year 1850; d) all property originating after 1850 that the States Parties have registered as cultural property, provided they have notified the other Parties to the Treaty of such registration; e) all cultural property that any of the States Parties expressly declares or states to be included within the scope of this Convention (…)

ARTICLE 7 The ownership regime applicable to cultural property and its possession and transfer within the territory of each State shall be governed by its domestic legislation. To prevent the illicit trade in such property, the following measures shall be promoted:

• a)registration of collections and transfers of cultural property subject to protection; b) registration of transactions [sic] conducted in establishments engaged in purchasing and selling such property; c) prohibition against importing cultural property originating from other States without the corresponding certificate and authorization.

ARTICLE 8 Each State is responsible for identifying, registering, protecting, conserving, and safeguarding its cultural heritage; to fulfill this function, it undertakes to promote:

• a)the preparation of such legislative and regulatory provisions as may be necessary to effectively protect such heritage against destruction through abandonment or improper conservation work; b) the creation of technical bodies specifically responsible for the (sic) protection and monitoring of cultural property (bienes culturales); c) the preparation and maintenance of an inventory and register of cultural property that will make it possible to identify and locate it; d) the creation and development of museums, libraries, archives, and other centers devoted to the protection and conservation of cultural property; e) the delimitation and protection of archaeological sites (lugares arqueológicos) and places of historical and artistic interest; f) the exploration, excavation, research, and conservation of archaeological sites and objects by scientific institutions carrying out such activities in collaboration with the national agency responsible for archaeological heritage (patrimonio arqueológico)” (emphasis added).

The foregoing reflects that, through the ‘Convención Defensa Patrimonio Arqueológico Artístico Naciones Americanas,’ the Costa Rican State undertook to adopt measures to guarantee the identification, registration, protection, and monitoring of the property comprising the cultural heritage (patrimonio cultural).

In the case of Law No. 4711 of January 6, 1971, entitled ‘Conservación Bienes Culturales por Ejecución Obras Públicas o Privadas,’ the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, signed in Paris on November 22, 1968, was approved, and it provided that:

“1. For the purposes of this Recommendation, the term ‘cultural property’ shall apply to:

a. Immovable property (bienes inmuebles), such as archaeological, historical, or scientific sites; buildings or other structures of historical, scientific, artistic, or artchitectural (sic) value, whether religious or secular; including groups of traditional buildings, historic districts in urban and urbanized rural areas, and vestiges of past cultures having ethnological value. It shall apply both to immovable property of the same nature constituting ruins above ground level and to archaeological or historical remains located beneath the surface of the earth. The term ‘cultural property’ also includes the surroundings of such property.

b. Movable property (bienes muebles) of cultural importance, including property located within, or recovered from, immovable property, as well as buried property that may be found at sites of archaeological or historical interest or elsewhere. (…)

2. General Principles 3. Measures for the preservation of cultural property should extend not only to specific monuments or sites, but to the entire territory of the State.

4. Inventories should be maintained for the protection of important cultural property, whether or not officially registered as such. Where such inventories do not exist, priority should be given, when establishing them, to a detailed and comprehensive survey of cultural property in areas where such property is endangered by public or private works.

5. Due account should be taken of the relative importance of the cultural property concerned when determining the measures necessary:

a. To preserve an archaeological site, monument, or other type of immovable cultural property in its entirety against the consequences of public or private works; b. To salvage cultural property when the area in which it is located is to be transformed for the execution of public or private works and when such property or part thereof is to be preserved and relocated.

6. The measures to be taken shall vary according to the nature, dimensions, and location of the cultural property and according to the nature of the threats facing it.

7. Measures intended to preserve or salvage cultural property should be preventive and corrective.

8. Preventive and corrective measures should be aimed at protecting or salvaging cultural property endangered by public or private works that may damage or destroy it, for example:

a. Urban expansion and renewal projects in which, even where registered monuments are respected, less important structures are altered, thereby destroying the connections and historical setting surrounding the monuments in historic districts; b. Similar projects in areas where traditional groups of cultural value may be at risk of destruction because no registered monument exists there; c. Inappropriate alterations or repairs to historic buildings; d. The construction or alteration of roads that pose a serious threat to sites, monuments, or groups of monuments of historical importance; e. The construction of reservoirs for irrigation, electric-power generation, and flood prevention; f. The construction of oil pipelines and electric-power transmission lines; g. Agricultural work such as deep plowing, drainage and irrigation work, land clearing and leveling, and reforestation; h. Work required by industrial development and the technical progress of industrialized societies, such as the construction of airfields, the operation of mines and quarries, and the dredging and improvement of canals and ports, etc.

9. Member States should give priority to measures necessary for the in situ preservation of cultural property endangered by public or private works, thereby maintaining the continuity and historical connections of such property. When economic or social circumstances require cultural property to be relocated, abandoned, or destroyed, salvage operations should always include a careful study of the cultural property concerned and a complete record of relevant data.

10. The results of studies of scientific or historical interest conducted in connection with work intended to salvage cultural property, particularly where all or a substantial part of the immovable cultural property has been abandoned or destroyed, should be published or otherwise made available to future researchers. (…)

13. In order to preserve or salvage cultural property that may be endangered by public or private works, means corresponding to the following specific measures should be employed, in accordance with each State’s legal and organizational system:

• a)Legislation, b) Financing, c) Administrative measures, d) Methods for preserving and salvaging cultural property, e) Penalties, f) Reparations, g) Rewards, h) Advice, i) Educational programs.

(…)

21. When preliminary studies are conducted concerning construction projects in a locality of recognized cultural interest, or where objects of archaeological or historical value are likely to be found, several alternatives for such projects should be prepared at the regional or urban scale before a decision is made. The choice among those alternatives should be based on a comparative analysis of all relevant factors in order to select the most advantageous solution, both economically and with respect to the preservation or salvage of cultural property.

Methods for preserving and salvaging cultural property:

22. Well in advance of public or private works that may endanger cultural property, thorough studies should be conducted to determine:

a. The measures to be taken to preserve important cultural property in situ; b. The extent of the necessary salvage work, such as selecting the archaeological sties (sic) where excavations are to be carried out, the buildings to be relocated, the movable cultural property to be salavged (sic), etc.

23. Measures intended to preserve or salvage cultural property should be taken well in advance of public or private works. In areas of archaeological or cultural importance containing significant monuments, such as cities, towns, sites, or districts of historical value, which should be protected by the legislation of every country, all new construction should be subject to mandatory preliminary archaeological excavations. Where necessary, construction should be postpoined (sic) to allow time for measures intended to preserve or salvage the cultural property concerned to be taken (…)” (emphasis added).

In turn, Law No. 8560 of November 16, 2006, entitled ‘Convención para la Salvaguardia del Patrimonio Cultural Inmaterial,’ broadened the scope of cultural-heritage protection by taking intangible cultural heritage (patrimonio cultural inmaterial) into consideration. In this regard, it stated:

“Article 2—Definitions. For the purposes of this Convention, 1. ‘Intangible cultural heritage’ means the practices, representations, expressions, knowledge, and skills—together with the instruments, objects, artifacts, and cultural spaces associated therewith—that communities, groups, and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature, and their history, providing them with a sense of identity and continuity and thereby helping to promote respect for cultural diversity and human creativity. For the purposes of this Convention, consideration shall be given solely to intangible cultural heritage that is compatible with existing international human-rights instruments and with the requirements of mutual respect among communities, groups, and individuals, and of sustainable development.

2. ‘Intangible cultural heritage,’ as defined in paragraph 1 above, is manifested in particular in the following domains:

• a)oral traditions and expressions, including language as a vehicle of intangible cultural heritage; b) performing arts; c) social practices, rituals, and festive events; d) knowledge and practices concerning nature and the universe; e) traditional craftsmanship.” At the case-law level, this Court stated in Judgment No. 4350-97, issued at 14:54 on June 24, 1997:

“SECOND: CULTURAL HERITAGE (PATRIMONIO CULTURAL) OR ARCHAEOLOGICAL HERITAGE (PATRIMONIO ARQUEOLÓGICO). Cultural property is the product and testimony of the different traditions and spiritual achievements of the past and constitutes a fundamental element of the identity of peoples; its preservation is therefore indispensable and is a fundamental duty of the State. Accordingly, historical and artistic heritage differs from assets of an economic nature because it does not consist of productive assets but rather of archaeological heritage, whose legal regime (régimen jurídico) reflects a different set of ideas and purposes and a different category of values. It therefore cannot be examined according to economic-policy criteria, since no doctrine of that kind applies to it. The notion of “estate” (patrimonio) certainly encompasses any property having monetary value. As stated in the Civil Code, an estate is the entirety of a person’s property and rights; likewise, all property comprising a person’s estate is liable for the payment of that person’s debts.

Archaeological or cultural property plainly also has an ascertainable monetary value, whether because of the material from which it is made, its fine craftsmanship or beauty, or the historical testimony it embodies, whether it is made of clay, stone, or metal. Some such objects may have little physical value or limited significance as works of art, but they are nevertheless valuable because of their origin and as objects of study for investigating the culture, beliefs, and customs of peoples from other eras, or the nature of the environment in which they lived, depending on the traces or representations that may be found in them. Yet both in the past and today, such property constitutes a common heritage bequeathed by past generations to the present generation, which in turn is responsible for bequeathing it to future generations as evidence contributing to knowledge of the human events that identify or characterize our past.

For all these reasons, archaeological objects originating from the Indigenous peoples who inhabited the continent during the pre-Columbian era, whether before or contemporaneously with the establishment of Hispanic culture, are valuable, and it is because of this value that many people seek and acquire such artifacts. For the same reason, any individual interest that a person may have in possessing or owning these objects does not take precedence over the public interest (interés público), both because of their historical value and because the culture of peoples encompasses the study of what was done by the human groups that inhabited the same territory. Such study is facilitated by enabling the greatest possible number of people to access these sources of knowledge, and nothing is more consistent with that public interest than for archaeological property to remain within the national territory, in the custody of museums, and under the ownership of the State or its institutions.

It must therefore be emphasized that the most important consideration is not the material value of these objects, but their historical, scientific, and cultural value. That interest is nothing more than the will of the majority directed toward attaining the intended values; that is, it consists of the majority of coinciding individual interests. It is an interest because it is directed toward obtaining a value, benefit, or utility arising from that upon which the majority concurs. It is public because it is attributed to the entire community as the result of that concurrence by the majority, since it belongs to the people, to the community as a whole. Thus, it is a public interest because it is not exclusive or peculiar to a few persons, but rather because such a number of persons comprising a given community participate or concur in it that it may be identified as belonging to the entire group, including those who, individually, may or may not share it.

In other words, historical and cultural values, as bearers of a message, help identify a particular historical moment and constitute real and tangible testimony to the evolution and transformation experienced by society and its natural environment over time. In the past, today, and for the future, they constitute a common heritage as the expression of the majority of coinciding individual interests; that is, of a public interest.

THIRD: THE CONSTITUTIONAL LEGAL REGIME (RÉGIMEN JURÍDICO CONSTITUCIONAL) OF THE NATIONAL ARCHAEOLOGICAL HERITAGE (PATRIMONIO NACIONAL ARQUEOLÓGICO). Among the essential purposes of the State, the 1949 Constituent Assembly established in Article 89 of the Political Constitution provisions intended to transmit that material legacy which constitutes the link connecting the present with the future. This makes it necessary to mention the provision’s legislative history, in which its adoption involved discussion of historical or artistic heritage—in other words, cultural heritage generally. Indeed, in the 1949 Constituent Assembly, the text of Article 89 of the Political Constitution that was ultimately adopted originated in a motion submitted by Fernando Baudrit Solera and other Deputies, in the following terms:

“Among the cultural purposes of the Republic are the preservation, development, and nationalization of its historical and artistic wealth, and support for private initiative toward the country’s scientific and artistic progress.” However, because the proposed text was challenged, the expression “nationalization” was deleted, and the debate made clear that private ownership of collections was to be respected as an individual interest deserving protection, since there was no intent to dispossess anyone of their legitimate property; nevertheless, if expropriation (expropiación) were necessary or advisable, the State could carry it out in accordance with the Constitution and the laws. The relevant minutes include, among other remarks, the following:

“Mr. Baudrit Solera explained that the idea of including the possibility of nationalizing artistic or historical wealth was intended precisely to preserve it within the country by preventing its export. Even now, it is necessary to enact a series of laws preventing private individuals from disposing of their artistic and historical wealth by selling it to foreign countries. That was why nationalization of such wealth was mentioned, with the understanding that, if expropriation were necessary, it would be carried out in accordance with the Constitution and the laws. There was no intent to dispossess anyone. Nevertheless, because he has no particular interest in retaining the term ‘nationalization,’ he accepts the suggestion made by his colleague Chacón (Alvaro Chacón Jinesta), provided that the other signatories to the motion agree to its deletion, especially since, if the State has a duty to ‘preserve,’ that provision will provide a basis for legally expropriating historical and artistic wealth whenever it deems such action advisable.” For this reason, the proposed text was amended, and Article 89 of the Political Constitution was adopted as follows:

“Among the cultural purposes of the Republic are: protecting natural beauty, preserving and developing the Nation’s historical and artistic heritage, and supporting private initiative toward scientific and artistic progress.” This constitutional provision derives from the original Constituent Assembly, which considered archaeological or cultural property—historical heritage—to belong to the State as part of its archaeological heritage. With respect to this Article, the constitutional case law that has developed states:

“In repeated case law, this Chamber has emphasized the importance to human development of living in a healthy and ecologically balanced environment, as well as the State’s protection of the country’s landscape, nature, and historical heritage. These matters are addressed in what are now Articles 50 and 89 of the Political Constitution. ... The case before us relates specifically to Article 89, which provides as follows:

‘Among the cultural purposes of the Republic are: protecting natural beauty, preserving and developing the Nation’s historical and artistic heritage, and supporting private initiative toward scientific and artistic progress.’ Archaeology and History are two closely related sciences, one of whose objectives is to clarify and reconstruct the events of the past. Historical reconstruction is based primarily on the interpretation of written documents, while Archaeology bases its studies on data obtained from material objects left by human activity in societies that no longer exist, through the relationships among such objects, the manner in which they were discovered, and their connection with the environment. Every preserved object and every vestige of human life and activity from past societies constitutes testimony that makes it possible to obtain complete or partial knowledge, as applicable, from that evidence and, consequently, knowledge of ways of life that no longer exist and are unknown today.

Such knowledge is uniquely important because those ways of life form part of the cultural identity (identidad cultural) of the society in which we live, provided, of course, that they constitute significant evidence for reconstructing and understanding the events of the past. The National Archaeological Heritage consists essentially of immovable and movable property (inmuebles y muebles) produced by Indigenous cultures that existed before or contemporaneously with the establishment of pre-Hispanic culture within the national territory, as well as human remains and flora and fauna associated with those cultures. The foregoing gives rise to an interest in protecting and preserving such finds.” (See judgments N.°2706, 10:42 hours del 26 de marzo, 1995 y N.° 0729 de 09:15 hours del 9 de febrero, 1996).

FOURTH: THE LEGAL REGIME (RÉGIMEN (sic) JURÍDICO (sic) LEGAL) OF THE NATIONAL ARCHAEOLOGICAL HERITAGE (PATRIMONIO NACIONAL ARQUEOLÓGICO). At the national level, two regimes have essentially been adopted to make possible, as has been done at the interna­tional (sic) level, the protection, defense, and recovery of cultural property (bienes culturales), as the product and testimony of the different traditions and spiri­tual achievements of the past, which thus consti­tute (sic) the essential element of the identity of peoples, making their preservation indispensable. In pursuit of that interest—which at the international level is recognized in instruments such as Convention 107 of the Internatio­nal (sic) Labour Conference concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, approved by Ley N.° 2330 de 8 de abril, 1959, which, in Articles 4(a) and 18(2), requires that the values and cultural heritage of those populations be taken into consideration; the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, signed in Paris on 22 de noviembre, 1968, approved by Ley N.° 4711 de 6 de enero, 1971; the Convention Concerning the Protection of the World Cultural and Natural Heritage, signed in Paris on 23 de noviembre, 1972, approved by Ley N.° 5980 de 16 de noviembre, 1976; and the Conven­tion (sic) on the Protection of the Archaeo­logical, Historical and Artistic Heritage of the American Nations, also known as the Convention of San Salvador, approved on 16 de junio, 1976, during the sixth regular session of the General Assembly of the Organization of American States (O.E.A.) in Santiago de Chile, and ratified by Ley N.° 6360 de 5 de setiembre, 1979, Article 2 of which includes within cultural heritage or cultural property monuments, buildings, fragments of buildings, objects, and archaeological material belonging to American cultures predating contact with European culture, as well as those from the colonial and post-colonial periods, property which, pursuant to Article 3, must receive the highest degree of protection at the international level and whose export and import are deemed unlawful unless the State to which they belong authorizes their export for the purpose of promoting knowledge of national cultures—many of our laws were inspired.

On the one hand, Law N.° 7 de 6 de octubre, 1938, although it did not properly refer (sic) to “archaeological heritage” or historical (and artistic) heritage, as the current Constitution does, established the following legal regime:

1.° It vested in the State ownership of all archaeological objects existing in Costa Rican soil and predating the Spanish conquest (sic), that is, corresponding to the pre-Columbian (sic) period, which had not yet become part of private holdings (patrimonio particular).

2.° It did not recognize State ownership of archaeological objects (objetos arqueológicos) from the colonial period; and 3. It denied legal effect to the conveyance (traspaso) of any archaeological property from the pre-Columbian(sic) era or the colonial period unless that property was registered and inventoried in the Registry and authorization was obtained from the Museum.

Two fundamental principles derived from these premises:

1.° All archaeological objects existing in Costa Rican soil and predating the Spanish conquest, as well as monuments of the same kind that might be found, are the property of the State; and 2.° Archaeological objects included in private holdings when that Law was enacted are private property, thereby establishing the ownership regime (régimen de dominio) for future discoveries (hallazgos) while respecting previously acquired rights (derechos adquiridos). On the other hand, Law N.° 6703 de 28 de diciembre, 1981, which is challenged in this action, was approved. It substantially modified the situation that had existed under the prior Law, which it repealed insofar as inconsistent, while recognizing, as the earlier Law had, private ownership of archaeological objects included in private holdings before that earlier Law was enacted. It established the following legal regime:

1.° Archaeological objects from the pre-Columbian (sic) period that were found and conveyed before the 1938 Law are private property (sic).

2.° Property from the same period that was found before but conveyed after the 1938 Law became subject to authorization by the Museum.

3.° Objects from the same pre-Columbian (sic) period found after the 1938 Law are the property of the State; and 4.° Objects from the colonial period, with respect to which the 1938 Law established no ownership right in favor of the State, became subject to controls and restrictions.

In other words, the foregoing means that ownership of objects from the pre-Columbian (sic) period found after that Law—the 1938 Law—was vested in the State; as to objects found before but conveyed afterward, the acquirer has no legitimate title of acquisition (título legítimo de adquisición), because the conveyance was made conditional upon authorization by the Museo Nacional, and the State has a preferential right (derecho preferente) to acquire them; objects found afterward belong to the State regardless of whether, while in the possession of private parties, they were registered with the Museum; and, as to objects from the colonial period, any transfer made previously constitutes legitimate title of acquisi­tion (sic), because such property was and continued to be privately owned while that Law was in force, and insofar as the Law requires authorization to convey archaeological objects, it refers only to conveyances made thereafter; however, with respect to property conveyed afterward, the acquirers of that property cannot claim legitimate title of acquisition, still less if the discovery occurred subsequently. All these aspects confirm the status of heritage property (bienes patrimoniales) held by private parties, as recognized by that first Law (…)

EIGHTH: CONCLUSIONS. In the matter sub judice, the essential basis for seeking a declaration of unconstitutionality (declaratoria de inconstitucionalidad) of Articles 3, 8, 17, 20, 26, and 29 of the “Ley de Patrimonio Nacional Arqueológico,” N.° 6703 de 28 de diciembre, 1981, is that, because they impose limitations—or deprivations or restrictions “sic”—on property rights that also operate to the detriment (sic) of freedom of commerce, their approval required a qualified affirmative vote (votación calificada afirmativa) of thirty-eight deputies, as mandated by the second paragraph of Article 45 of the Constitución Política. That did not occur because, according to the attendance record, the vote—which was conducted by roll call—received thirty-one (31) affirmative votes and eight (8) negative votes. From the analysis of the foregoing considerations regarding the underlying grounds (sic) for treating “archaeological heritage” as State property, it must be concluded that although such property, like anything else, may at one time have been capable of appropriation, the fact is that at present, since 1949 and by constitutional mandate, it differs from economic assets (bienes patrimoniales de carácter económico), because it constitutes heritage property that the State must protect, preserve, and develop under Article 89 of the Constitución Política, which also recognizes, as stated, private initiative for scientific and artistic progress.

Thus, as has also been stated, the limitations referred to in the second paragraph of constitutional Article 45 are those deriving from the “... principle of social solidarity, with which our (sic) constitution is imbued, and which permits an encumbrance (gravamen) borne by all for the benefit of all, or even by a few for the benefit of many, but subject to the requirement that the natural use of immovable property (bien inmueble) not be affected to the extent of its value as a means of production or its market value. In other words, the attributes of ownership may be limited insofar as the owner retains the possibility (sic) of making normal use of the property, excluding, of course, the portion or function affected by the limitation imposed by the State. Outside those parameters, if social welfare requires sacrifices (sic) by only one person or several persons, compensation must be paid (sic).” (­...) “Whether a limitation on property withstands constitutional analysis will depend on its effect upon the essential attributes of ownership, namely those that permit the natural use of the thing within current socioeconomic real­ity (sic).” (...) “The harm may be general, rendering a large part of the property unusable, or it may affect the best part of the property.

It could also involve a limitation that makes use of the thing impossible because the State imposes authorization or approval requirements (sic) so complex that they effectively make it impossible to derive benefit from the property. In these particularly severe cases, the limitation produces three identifiable effects: a—it causes special harm because it affects a specific number of properties; b—it is abnormal insofar as the impact is so serious in relation to the full enjoyment of the right and operates unequally compared with other owners outside the affected area; and c—the harm is economically quantifiable. Consequently, if the limitation is so extensive that it deprives the property of its economic value and removes it from the immovable-property market, the State must compensate for the harm caused.” (See judgment N.° 7418, 09:57 horas, 16 de diciembre, 1994).

Consequently, cultural property, more than property of social interest intended to satisfy demands and requirements inherent in public needs, that is, to attain the general welfare, constitutes the “national archaeological heritage” (patrimonio nacional arqueológico), whose ownership by the State, as representative of the entire community, is beyond dispute. It follows that no one can be deprived of that which belongs to the State; therefore, the Ley de Patrimonio Nacional Arqueológico, N.° 6703 de 28 de diciembre, 1981, by declaring archaeological heritage property (bienes patrimo­niales arqueológicos) to be the property of the State (artícuLo 3), prohibiting its trade and export (artículo 8), and requiring its possessors to submit it to the Registro Público Nacional Arqueológico for registration (artículo 17), does not create limitations—deprivations or restrictions—on private property requiring a qualified vote, as alleged.

However, the foregoing does not entail any impairment of vested property rights (derechos patrimoniales adquiridos) or settled legal situations (situaciones jurídicas consolidadas), as recognized both by the previous law and by the current legal framework referred to herein, and as ratified by the cited ruling of the Corte Plena acting as the Tribunal Constitucional. For that very reason, the authorization referred to in the second paragraph of artículo 45 of the Constitution is not an authorization to impose every kind of limitation on property, but only those based on “social interest”; it is clear, however, that cultural property or archaeological heritage property cannot be included among them, because they have a different origin and serve a different purpose. Finally, this is stated without prejudice to our understanding—although that is not the situation at issue in this action—that even cultural property (belonging to the historical heritage) lawfully held by private persons may be expropriated if the statutory provisions governing the matter are duly complied with.

As a consequence of the foregoing, artículos 3, 8 y 17 de la Ley de Patrimonio Nacional Arqueológico, as interpreted by the Corte Plena at its sesión extraordinaria N.° 19 de las nueve horas del veinticinco de marzo de mil novecientos ochenta y tres, the minutes of which were approved at the sesión del cuatro de abril siguiente, are not incompatible with the Constitución Política or with the other constitutional rules and principles invoked. Nor are artículos 20, 26 y 29 unconstitutional because, as indicated, they elaborate upon and are premised on the validity of those other challenged provisions. Accordingly, none of those provisions is unlawful on the asserted ground of unconstitutionality arising from their approval without the qualified vote required by the cited artículo 45 of the Constitution. Consequently, the constitutional challenge (acción de inconstitucionalidad) must be dismissed with respect to those claims” (boldface added).

Subsequently, judgment nro. 2002005245 de las 15:20 horas del 29 de mayo de 2002 clarified:

“VI.- Archaeological property within the constitutional system. Artículo 89 de la Constitución Política establishes that the cultural purposes of the Republic include:

“... protecting natural beauty, preserving and developing the Nation’s historical and artistic heritage, and supporting private initiative for scientific and artistic progress.” The protection of historical heritage thus falls within the broader scope of the State’s duty to preserve the shared culture that makes its people a Nation. The Diccionario de la Real Academia Española de la Lengua, insofar as relevant, defines culture as:

“... the body of ways of life and customs, knowledge, and degree of artistic, scientific, or industrial development in a particular period or social group” (Vigésima Segunda Edición. Tomo I. 2001) Archaeological heritage is a subset of the broader category of cultural heritage, a distinction with important practical implications insofar as the State’s role in promoting and safeguarding archaeological property must always form part of a comprehensive policy for protecting and fostering indigenous cultural production. For the rights arising from the constitutional provision at issue to be effectively realized, public authorities must not only create the necessary regulatory framework but also take concrete action through suitable protective mechanisms, based on the inescapable premise that a Nation that scorns its historical legacy—by destroying it or by failing to use every lawful means to prevent its loss or deterioration—is destined to fail as a society, because it is precisely a view of the past that makes it possible to understand the present and plan for the future.

In Costa Rica, archaeological heritage has commonly been defined as the collection of immovable and movable property produced by indigenous cultures predating or contemporaneous with the establishment of Hispanic culture in the national territory, as well as the human remains, flora, and fauna associated with those cultures. It constitutes one of the principal means of acquiring accurate knowledge of the historical origins of our societies, insofar as it enables us to understand the origins of our current forms of thought and cultural expression, while also providing highly useful data for other fields of knowledge, such as ecology, pharmacotherapy, zoology, and others. Regarding the intrinsic importance of archaeological heritage within the social system, this Chamber ruled as follows:

“Archaeology and History are two closely connected sciences, one of whose objectives is to clarify and reconstruct past events. Historical reconstruction is based primarily on the interpretation of written documents, whereas Archaeology bases its studies on data obtained from material objects left by human activity in societies that have disappeared, through the relationships among those objects, the circumstances of their discovery, and their connection with the environment. Every preserved object and every vestige of the life and activity of human beings in past societies represents evidence that makes possible complete or partial knowledge, as the case may be, of those remains and, consequently, of ways of life that no longer exist and are unknown today, but whose understanding is of singular importance because they form part of the cultural identity of the society in which one lives—provided, of course, that they constitute important evidence for reconstructing and understanding past events.” (Sentencia número 729-96 de las nueve horas quince minutos del nueve de febrero de mil novecientos noventa y seis) Knowledge of the past is not of particular interest merely as a matter of historiographical curiosity; rather, its study makes it possible to approach a comprehensive understanding of current social and cultural phenomena.

The protection of archaeological property must therefore be understood as a means of safeguarding culture in general, as a value that transcends ownership by any individual and constitutes a matter of national importance, whose recognition and effective defense form part of the interests guaranteed by artículos 50 y 74 de la Constitución Política.

VII.Archaeological heritage under International Law. Costa Rica, as a subject of International Law, has signed and ratified various instruments intended to protect archaeological heritage. The following may be cited: A) The Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention), de catorce de mayo de mil novecientos cincuenta y cuatro, and its Regulations, which recognize the importance of archaeological heritage and require States involved in armed conflict to respect the heritage of the territories they occupy, placing their cultural property in safekeeping away from the conflict zone. B) The Recommendation on International Principles Applicable to Archaeological Excavations, de cinco de diciembre de mil novecientos cincuenta y seis, requires States Parties to subject archaeological excavations conducted within their territories to strict supervision and prior authorization by the competent authority (principio 5).

• C)The International Charter for the Conservation and Restoration of Monuments and Sites, which recognizes that a monument is inseparable from the history to which it bears witness and also prohibits the relocation of a monument except when necessary for its preservation (artículo 7); establishes the obligation to protect those sites (14); and requires preservation of the monument’s identity by avoiding any essential alteration of its appearance or nature (15). D) The Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), aprobada mediante Ley número 6360 de cinco de setiembre de mil novecientos setenta y nueve, which includes among cultural property archaeological material belonging to American cultures predating contact with European culture (artículo 2); recognizes State ownership of such objects (6); and provides that each State undertakes to promote the exploration, excavation, research, and conservation of sites and objects by specialized agencies in collaboration with the public institutions responsible for safeguarding archaeological heritage (8).
• E)The Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works, suscrita el veintidós de noviembre de mil novecientos sesenta y ocho, aprobada mediante Ley número 4711, de seis de enero de mil novecientos setenta y uno, which states in its recitals that contemporary civilization and its future evolution rest upon the traditions of peoples and the creative forces of humanity, as well as upon their social and economic development, and that cultural property is the product and evidence of the different traditions and spiritual achievements of the past and thus constitutes a fundamental element of the identity of peoples; it therefore establishes the need to extend the protection of cultural heritage throughout the entire territory of the State, rather than only to sites formally declared as such (artículo 3); requires both preventive and corrective measures (7) against any type of public or private works capable of damaging such property (8); and further provides that detailed studies must be conducted sufficiently in advance to determine the measures to be adopted in situ and the extent of the necessary salvage work (22).
• F)The Convention Concerning the Protection of the World Cultural and Natural Heritage, suscrita el veintiuno de noviembre de mil novecientos setenta y dos, aprobada por Ley número 5980 de dieciséis de noviembre de mil novecientos setenta y seis, requires States Parties to identify, protect, conserve, rehabilitate, and transmit cultural heritage to future generations (artículo 4). G) The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, firmada el diecinueve de setiembre de mil novecientos setenta, aprobada por Ley número 7526 de diez de julio de mil novecientos noventa y cinco, which includes within the concept of cultural heritage property of ethnological, archaeological, and natural value (artículo 5).

It bears clarification that all the instruments cited in the preceding paragraph constitute sources of law (fuentes de Derecho) in Costa Rica and may be applied directly by this Sala Constitucional in deciding the present matter, as prescribed by Article 48 of the Constitution. In the case of those approved by the Asamblea Legislativa, this follows from the express provision of Article 7 of the Constitución Política. As for those that do not enjoy that status, they constitute, at a minimum, sources for interpreting the approved instruments. Nor does this Sala recognize the existence of mere recommendations in the field of human rights, since States, by deciding to limit themselves, recognize the existence of certain human rights even when the relevant instruments are described as “recommendations.” The foregoing leads to the conclusion that the Recommendation Defining International Principles to Be Applied in the Case of Archaeological Excavations, the International Charter for the Conservation and Restoration of Monuments and Sites, and the Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works are—in the terms stated above—acts having full normative force within the Costa Rican constitutional legal order and cannot be regarded as mere lists of objectives and goals to be achieved.

VIII.Legal regulation of archaeological heritage (patrimonio arqueológico). In addition to the constitutional provisions protecting archaeological heritage and the commitments undertaken by Costa Rica toward the international community to the same effect, various domestic provisions have been enacted concerning the subject matter of this action. A) Law number 7 of seis de octubre de mil novecientos treinta y ocho grants archaeological property (bienes arqueológicos) the status of public-domain property (bienes dominiales) (Article 1) and further requires that the discovery of objects be reported immediately to the public authorities, which must take the measures necessary for their protection (Article 17). B) Ley 6793, of veintiocho de diciembre de mil novecientos ochenta y uno, Ley de Patrimonio Nacional Arqueológico, which, in addition to reiterating the provisions of Law number 7, creates the Comisión Arqueológica Nacional, a body vested with the authority to authorize and supervise excavations by previously registered scientists (Articles 12 and 15); it confers upon the Museo Nacional the authority to determine how property will be recovered when discovered by a third party (Article 13).

• C)The Código de Minería, Law number 6797, of cuatro de octubre de mil novecientos ochenta y dos, Article 102(h) of which requires environmental impact studies (estudios de impacto ambiental) concerning effects on the country’s archaeological and cultural wealth before mining activities may be conducted. D) Law number 7555, of cuatro de octubre de mil novecientos setenta y cinco, Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, which defines an archaeological site (sitio arqueológico) as one containing objects of importance from a historical, aesthetic, ethnological, anthropological, or environmental perspective (Article 6); Article 7, in turn, establishes the procedure for incorporating property into the historical-architectural heritage (patrimonio histórico-arquitectónico) by decree, which entails a prohibition against demolishing the real property.

IX.The importance of archaeological property. Archaeological property, understood as objects that allow researchers to access historical knowledge, possesses intrinsic importance because it constitutes a suitable and scarcely replaceable means of acquiring that knowledge, in which the surrounding environment also assumes particular relevance. To provide effective protection (tutela) for archaeological property, the State must participate actively in all procedures aimed at its detection, recovery (where appropriate), study, registration, and preservation. Only in this way can full compliance be achieved with the duties arising from the constitutional mandate, as well as with those undertaken through the execution of the cited international instruments and the enactment of the aforementioned laws. Despite this marked importance, the protection of archaeological property has been adversely affected by the convergence of various factors, such as collecting, the trade in objects, and their indiscriminate destruction, due in part to construction in areas containing archaeological sites.

Given the State’s constitutional obligation to safeguard archaeological heritage, this convergence of interests makes it necessary to establish legislative and administrative mechanisms aimed at ensuring protection of the archaeological legacy in the face of the need for economic development. This precedence was previously recognized by the Corte Plena when, in exercising constitutional-review functions, it held:

“It is obvious that archaeological property also has an appreciable monetary value, whether because of the material from which it is made (gold, for example), or because of its fine craftsmanship and beauty, even when made of clay or stone. Some of these objects may have little physical value or limited artistic significance; nevertheless, they are valuable because of their origin and as subjects of study for investigating the culture of peoples from other eras, their beliefs and customs, or the nature of the environment in which they lived, depending on the traces or representations that may be found therein. For all these reasons, archaeological objects originating from the Indigenous peoples who inhabited the continent during the pre-Columbian period, or before or contemporaneously with the establishment of Hispanic culture, are valuable; and it is because of this value that many people acquire such objects, some for spiritual enjoyment or scientific interest and others perhaps to profit from them.

But above any individual interest a person may have in the possession or ownership of such objects, the public interest prevails, both because of their historical value and because the culture of peoples encompasses the study of what was done by the human groups that inhabited the same territory—a study facilitated by enabling the greatest possible number of people here to access those sources of knowledge. Nothing is more consistent with that public interest than for archaeological property to remain within the national territory, in the custody of museums and under the ownership of the State or its institutions, as part of the historical heritage that the Carta Política designates as belonging ‘to the Nation’ in Article 89. It must therefore be emphasized that the most important consideration is not the material value of the objects in question, but their historical and cultural value, and that the economic doctrine concerning productive assets and freedom of enterprise could in no way apply to those objects.” (Decision of trece horas del doce de mayo de mil novecientos ochenta y nueve) It is therefore clear that the significance of archaeological property is not exhausted by its commercial aspects.

Quite the contrary, its greatest importance lies in the information it can provide for a proper understanding of the origins of national identity, as well as the vast amount of information it offers for other equally important fields of scientific knowledge. Thus, even objects with few aesthetic qualities, objects used in everyday life, or objects in a poor state of preservation may be of great importance to archaeological knowledge. Moreover, the protection of archaeological heritage is also a matter of worldwide importance. The Preliminary Report on Legal Means for the Protection and Preservation of the Historical and Artistic Heritage of the American States, issued by the Organización de Estados Americanos, stated in this regard:

“States do not have an exclusively local interest in protecting and preserving the tangible evidence of the art and culture of past eras found within their respective territories; that interest is shared by the entire international community, which justifiably considers such evidence to constitute a cultural heritage belonging to all humanity and, therefore, deserving of its concern and protection.

Thus, the protection and preservation of cultural heritage now transcends the sphere of national jurisdictions and is supplemented legally through international instruments and materially through the concerted cooperation of the countries comprising the international community, so as to fulfill that duty of protection and preservation.” The preservation of a people’s archaeological heritage is therefore viewed not as a matter of merely local interest, but as a significant contribution to the preservation of world culture.

X.Archaeological heritage as public-domain property. It is evident that, pursuant to the terms of the cited provisions, archaeological property forms part of the public estate and consists of what are known as public-domain assets (bienes demaniales), title to which is vested in the Nation insofar as they are dedicated to serving a purpose of general interest. The use and possession of public-domain property is always governed by a special legal regime (régimen especial), characterized by the fact that such objects may be used only in a manner that does not conflict with their purpose—in some (sic) cases solely by the Administración, and in others also by private parties, but strictly subject to the limitations inherent in their public character. This Sala has defined public-domain property (bienes de dominio público) in the following terms:

“…The public domain consists of property that, by the legislature’s express will, has the special purpose of serving the community and the public interest.- These are known as public-domain assets, demanial assets, public property or things, which do not belong individually to private parties, are intended for public use, and are subject to a special regime outside private commerce.- That is, they are dedicated by their very nature and purpose.- Consequently, these assets belong to the State in the broadest sense of the concept; they are dedicated to the service they provide, which is invariably essential by virtue of an express provision.- Characteristic features of these assets are that they are inalienable (inalienables), not subject to acquisitive prescription (imprescriptibles), immune from attachment (inembargables), incapable of being mortgaged or encumbered under the terms of Civil Law, and administrative action replaces possessory proceedings (interdictos) for recovering ownership.- Because they are outside private commerce, these assets cannot be possessed, although a right of use may be acquired, but not an ownership right.- A use permit (permiso de uso) is a unilateral legal act issued by the Administración in the exercise of its functions, under which beneficial dominion (dominio útil) over the property is placed in private hands, while the State always retains direct dominion (dominio directo) over the thing…” (Judgment number 2306-91 of catorce horas con cuarenta y cinco minutos del seis de noviembre de mil novecientos noventa y uno) Previously, the Corte Plena, in exercising constitutional review, determined:

“Now then, although prior to the 1938 Law there was no adequate legislation concerning the archaeological heritage (patrimonio arqueológico), it was entirely reasonable for the legislature to address the matter in that Law and in the 1981 Law, in order to prevent a recurrence of what had occurred under the previous legal regime. XIX.- Those two laws recognize individual ownership of archaeological property (bienes arqueológicos) held in private hands; but at the same time they provided that, thereafter, any property discovered would belong to the State. No vested right (derecho adquirido) was impaired, since the private ownership existing up to that time was preserved… No special provision in the Constitution is required for specific prohibitions to be established by ordinary laws, provided they are supported by Article 28, such as those that exclude discovery as a legitimate basis of title for acquiring private ownership of archaeological property…

XX.- Article 89 reflects the public interest protected by the Constitution in Article 28, second paragraph, since it states that ‘The cultural purposes of the Republic include: ...preserving and developing the Nation’s historical and artistic heritage.’ This recognized the existence of a heritage distinct from property of an economic nature and, at the same time, established the duty to ensure its preservation. Cultural and historical public policy (orden público cultural e histórico) allows that rule to be interpreted broadly and relied upon to reaffirm State ownership of archaeological property discovered in the future, as provided by the 1938 Law. Such property, both then and now, constitutes ‘a common heritage bequeathed by past generations to subsequent ones’… XXI.- It follows from all the foregoing: a) That the ownership regime established in Article 1 of the 1938 Law is legitimate, since it is supported by Articles 28 and 89 and does not conflict with Article 45 of the Political Constitution itself; and b) That, consequently, Articles 3, 5, 7, 9, and 17 of Law No. 6703 of 1981 likewise cannot be contrary to the Constitution insofar as they apply to archaeological objects discovered after Law No. 7 of 1938, since such property belongs to the State pursuant to Article 1 of that 1938 Law, which is not unconstitutional.” (Decision rendered at thirteen hours on twelve May nineteen eighty-nine)

XI.The preventive principle (principio preventivo) in archaeological matters. The importance of archaeological property and its status as public-domain property (bienes demaniales) impose upon the State a series of obligations aimed at its effective protection, a feature common to the so-called third-generation rights (derechos de la llamada tercera generación). In matters of such importance and requiring such delicate protection, it is inconceivable that the administrative authorities should intervene only after the damage has been caused, because the damage may be irreversible and extremely extensive. In the case of archaeological property, there is only one possibility: its effective protection or its irreparable loss. To determine the appropriate timing and actions the State must undertake to protect the archaeological heritage, certain important considerations outlined in the preceding recitals must be addressed.

Although archaeological property, considered individually, may indeed constitute key elements for understanding the country’s historical and cultural past, its significance may be diminished if it is not considered comprehensively in relation to the context in which it was found. Archaeological research therefore cannot be limited to the study of objects that have been wholly or partially destroyed, or of property removed from its context without first conducting exhaustive field analyses aimed at understanding it within the environment where it was found, because in such cases work that, by constitutional mandate (Articles 50, 74, and 89), should be conceived as scientifically rigorous could become little more than the mere collecting and artistic contemplation of objects, in contravention of the fundamental legal order” (emphasis added).

The foregoing precedent demonstrates the importance of the preventive principle in archaeological matters. This entails protecting objects or sites considered culturally significant, which requires conducting the relevant scientific studies to guarantee their protection and preservation. Mutatis mutandis, considering that cultural heritage (patrimonio cultural) encompasses several types of heritage (such as archaeological heritage—see Judgment No. 2002005425 rendered at 16:20 hours on 29 May 2002—), the foregoing position is fully applicable to the historical heritage (patrimonio histórico) associated with isla San Lucas.

In turn, in Judgment No. 2003003656 rendered at 14:43 hours on 7 May 2003, this Constitutional Chamber referred to cultural heritage in the following terms:

“C.- CONSTITUTIONAL PROTECTION OF CULTURAL HERITAGE. ARTICLES 50 AND 89 OF THE POLITICAL CONSTITUTION.

XVI. DELIMITATION OF THE SCOPE OF APPLICATION AND LEGAL-CONSTITUTIONAL BASIS

The importance of protecting cultural heritage at the national, regional, and international levels is beyond dispute, precisely because of the significance this legacy holds for the necessary preservation and strengthening of the identity of peoples (population and/or nation), whether in historical, social, geographical, or cultural terms. It is universally understood that comprehension of the past—a connection with one’s roots—entails comprehension of the present and establishes the possibilities for the future material and psychosocial development of individuals and human groups. This involves recognizing a value, understood as the incorporation of economic potential, or a value realized in pursuit of a transcendent purpose (spiritual, cultural, or artistic value). For this reason, the concept of historical-architectural heritage (patrimonio histórico-arquitectónico) has evolved, as have the criteria for its protection, so that such protection is no longer justified by a ‘romantic’ ideal, but rather by its status as a condition of the identity of peoples, as an integral part of their history and culture, based on considerations of socioeconomic and urban-environmental or urban-ecological development, and grounded in a more human-centered rationale.

Protection by the States is therefore necessary to enable effective and efficient action based on a scientific framework consistent with reality, both in the fields of territorial and architectural theory and in the legal field, insofar as it interacts with other disciplines and areas of knowledge, including History, Anthropology, Architecture, Restoration Theory, and Law; and it must take into account the country’s particular circumstances, such as the degree of underdevelopment and economic dependency. The protection of this heritage must therefore be actively integrated into the country’s social and economic resources so that it does not constitute a burden on the State or on the population (owners, possessors, or holders of any property right (derecho real) in property incorporated into this special protective regime), but instead becomes an additional resource that generates social well-being.

XVII.The protection of cultural heritage falls within Urban Planning Law (Derecho Urbanístico), which has recently come to be understood as part of the broader framework of Environmental Law (Derecho Ambiental), whose legal-constitutional basis is found in Articles 50 and 89 of the Political Constitution, insofar as they expressly provide:

‘The State shall seek the greatest well-being for all inhabitants of the country by organizing and promoting production and the most appropriate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. Accordingly, every person has standing to report acts that violate that right and to seek reparation for the damage caused.

The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding liabilities and penalties’ (Article 50); and ‘The cultural purposes of the Republic include protecting natural beauty, preserving and developing the Nation’s historical and artistic heritage, and supporting private initiative for scientific and artistic progress’ (Article 89).

This latter provision establishes guidelines for public authorities to promote environmental protection, understood comprehensively; that is, not in the traditional sense, which has been limited to natural resources—commonly known as ‘the green environment’—insofar as it has been understood to encompass natural resources (forests, water, air, minerals, flora and fauna, etc.), but also with respect to the surroundings in which people live, encompassing not only the scenic beauty of nature, such as the landscape, but also everything relating to cities and urban and rural communities, that is, the concept of the urban environment. These may properly be described as two complementary aspects of a single reality, like two sides of the same coin: the natural environment and the urban environment. The aim is thus to achieve a more human environment; that is, an environment that is not only healthy and ecologically balanced but also serves as a symbolic reference and a source of national, regional, or local identity.

Accordingly, the fundamental right to a healthy and ecologically balanced environment—extensively developed in constitutional case law—encompasses both its natural and artificial components, the latter understood as the human habitat, that which has been built by human beings, namely, the urban environment, so that they remain free from all pollution, both because of the effects and repercussions pollution may have on the health of people and other living beings and because of the environment’s intrinsic value. A pollutant (elemento contaminante) must be understood as ‘[...] any element, compound, or substance; any association or composition thereof; any chemical or biological derivative; and any form of energy, radiation, vibration, or noise which, when introduced into the environment in a certain quantity for a more or less prolonged period, may adversely affect or be harmful to human life, health, or well-being, or to flora and fauna, or cause deterioration in the quality of the air, water, soil, “natural beauty,” or resources in general, which, taken together, constitute quality of life’ (Judgment No. 3705-93, rendered at fifteen hours on thirty July nineteen ninety-three).

Thus, the protection of cultural heritage, and specifically historical-architectural heritage, constitutes a necessary principle when seeking a better quality of life—a determining element in the concept of the environment—and its effective protection; accordingly, its regulation falls within Environmental Law.

XVIII.Articles 50 and 89 of the Constitution impose an obligation upon the State to protect the environment in which the lives of the nation’s population unfold, encompassing these two spheres: the natural and the urban; consequently, the protection of cultural heritage, and more specifically historical-architectural heritage, falls within urban-planning regulations (regulaciones de orden urbanístico). In light of the foregoing considerations, it may properly be stated that preserving cultural heritage contributes to maintaining the environmental balance necessary for urban development because its effective protection requires respect for urban scale, structure, and dimensions, regulates physical carrying capacity, and calls urban functions and services into question, resulting in better environmental quality; it also helps preserve the city’s distinctive image or perceptual coherence, thereby giving it identity or formal cohesion.

XIX. REGULATORY DEVELOPMENT OF ENVIRONMENTAL PROTECTION

Both facets of the environment—that is, the natural environment (medio ambiente natural) and the urban environment (medio ambiente urbano)—are subject to protection and oversight by the State, as a consequence of the obligations imposed by the constitutional provisions transcribed above and developed through regulations of various categories, including international treaties, among which the following may be cited: the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, ratified by Law number 3763; the Convention for the Conservation of Biodiversity and the Protection of Priority Wilderness Areas in Central America, ratified by Law number 7433; the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat, ratified by Law number 7724; the Convention on International Trade in Endangered Species of Wild Fauna and Flora, ratified by Law number 5605; the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, ratified by Law number 7227; the Protocol Concerning Cooperation in Combating Oil Spills in the Wider Caribbean Region; the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, ratified by Law number 5566; the Convention on Fishing and Conservation of the Living Resources of the High Seas, ratified by Law number 5032; the Convention on the Territorial Sea and the Contiguous Zone, ratified by Law number 5031; and the Constitutive Agreement of the Central American Commission for Environment and Development, ratified by Law number 7226, in the field of the natural environment; the Convention for the Protection of Cultural Property in the Event of Armed Conflict, its Regulations and Protocol, adopted at the International Conference of States convened by UNESCO in 1954 and signed by Costa Rica on March 3, 1996; the Recommendation on International Principles Applicable to Archaeological Excavations, adopted at the UNESCO General Conference in 1956; the Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, adopted at the UNESCO General Conference in 1962; the International Charter for the Conservation and Restoration of Monuments and Sites, adopted by the International Council on Monuments and Sites (ICOMOS) in 1965; the Norms of Quito, adopted at the Meeting of Latin American Presidents in 1967; the Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage, adopted at the UNESCO General Conference in 1968; the Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works, adopted at the UNESCO General Conference in 1968 and ratified by Law number 4711; the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted at the UNESCO General Conference in 1970 and ratified by Law number 7526; the Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted at the UNESCO General Conference in 1972 and ratified by Law number 5980; the Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations, adopted by the General Assembly of the Organization of American States (OAS) in 1976 and ratified by Law number 6360; the Recommendation Concerning the Safeguarding and Contemporary Role of Historic Areas, adopted at the UNESCO General Conference in 1976; the Recommendation Concerning the International Exchange of Cultural Property, adopted at the UNESCO General Conference in 1976; the Recommendation for the Protection of Movable Cultural Property, adopted at the UNESCO General Conference in 1978; the ICOMOS International Charter for the Conservation of Historic Towns and Urban Areas, adopted in 1987; and the Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted at the UNESCO General Conference in 1989.

Various laws concerning environmental matters have been enacted in our country, such as the Ley Orgánica del Ministerio de Ambiente y Energía, number 7152; the Ley Orgánica del Ambiente, number 7554; the Ley de Biodiversidad; the Ley Forestal, number 7575, and its Regulations; the Ley de Conservación de la Fauna Silvestre, number 2790, and its Regulations, Decreto Ejecutivo number 26.133-MINAE; the Ley de Aguas, number 276; the Ley de la Zona Marítimo Terrestre, number 6043; and the Ley General de Salud, number 5395; and, with respect to the protection of cultural heritage (patrimonio cultural), the following: the Ley de Protección del Patrimonio Arqueológico, number 6730, and the Ley del Patrimonio Histórico-Arquitectónico, number 7555. Among the body of regulatory provisions concerning environmental matters, the following may be cited: the Reglamento Especial que regula la extradición de los materiales en los cauces de dominio público, Decreto-Ejecutivo number 21.910-MIRENEM; Decreto Ejecutivo number 30.480-MINAE, which establishes the principles governing national water-management policy; the Reglamento sobre Procedimientos de la SETENA, Decreto Ejecutivo number 25.705-MINAE; Los principios, criterios e indicadores para el manejo forestal y la certificación en Costa Rica, Decreto Ejecutivo number 27.388-MINAE; De las funciones regenciales, Decreto Ejecutivo number 26.870-MINAE, in addition to the executive decrees declaring or creating protected areas; as well as the Reglamento de la Comisión Arqueológica Nacional, Decreto Ejecutivo number 19.016-C, in the case of cultural heritage, and all decrees incorporating real property and the buildings thereon into the historical-architectural heritage (patrimonio histórico-arquitectónico).

XX. CONCEPTUALIZATION OF THE PROTECTION OF CULTURAL HERITAGE AS A FUNDAMENTAL RIGHT

Society’s process of cultural development and the exchange of cultural goods and expressions give rise to a framework of rights and obligations connected with social, political, and economic conditions in the world, such as the population’s growing sociocultural needs, the increasing importance of culture as an essential element of nationality (national identity), the challenges facing the survival of traditional, artisanal, and folkloric cultures, and the importance of the values and expressions of cultural heritage as a fundamental factor in national integration, all of which demonstrates the need for adequate regulation that encompasses the interests at stake. Within this context arises the State’s duty to safeguard or protect (tutela) cultural heritage, since it falls within the framework of the Social State under the Rule of Law (Estado Social de Derecho), with all its implications; accordingly, it is conceptualized as a genuine fundamental right deriving from the right to culture and is therefore enforceable against the public authorities responsible for such protection, which translates into the right to demand effective and concrete actions by the Administration to safeguard cultural heritage.

This right is founded on the essential dignity of the human person and on the need to integrate this element into the development of the community; thus, it encompasses not only an individual’s right to personal self-fulfillment, but also the right of the community—the population—to shape its cultural identity, since cultural heritage constitutes an essential element contributing to this important task. It therefore also has implications for the cultural sovereignty of States, specifically regarding the preservation of the country’s cultural identity and the requirement of such international cooperation as may and should be provided in this regard. It is a third-generation right founded on the principle of solidarity; it is therefore classified within the category of social rights and is clearly significant insofar as it affects life in society, because, by virtue of this right, every individual has the right—as required by that individual’s essential dignity—to participate in the heritage and cultural activity of the community to which he or she belongs; and it imposes a duty—and responsibility—on public authorities to provide appropriate means for effective participation so as to guarantee access to and exercise of this right, insofar as their available resources permit.

Culture thus constitutes the most significant element of awareness for safeguarding the essential heritage that defines national identity at various levels, encompassing the protection of folklore, the encouragement of intellectual and artistic endeavors, the promotion of international exchange, the protection of cultural heritage, the promotion of the development of the arts, arts education, and the promotion of books. Accordingly, every person has a right to culture, just as every person has a right to education, work, and freedom of expression—fundamental rights to which it is directly related. In this regard, countless international resolutions and declarations formally recognize the right to culture. Thus, in Resolution IX adopted by the Inter-American Conference on Problems of War and Peace (held in Mexico from the twenty-first of February to the eighth of March of nineteen forty-five), the States of the Americas expressly recognize in paragraph 13:

“Among the rights of man, foremost is equality of opportunity to enjoy all the spiritual and material benefits offered by our civilization through the lawful exercise of his activity, industry, and ingenuity.” The American Declaration of the Rights and Duties of Man (adopted at the Ninth International Conference of American States on the fifth of May of nineteen forty-eight, in Bogotá, Colombia) recognizes the right to the benefits of culture:

“Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.

He likewise has the right to the protection of his moral and material interests arising from any inventions or literary, scientific, or artistic works of which he is the author.” The recitals in the Preamble to this Declaration are noteworthy insofar as they contain certain statements related to culture and allow for a better interpretation of that provision:

“All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience, they should conduct themselves as brothers to one another” (first paragraph); “It is the duty of man to serve the spirit with all his powers and resources because the spirit is the supreme goal of human existence and its highest expression” (fourth paragraph); “It is the duty of man to practice, preserve, and foster culture by every means within his power, because culture is the highest social and historical expression of the spirit” (fifth paragraph).

Freedom of culture, as an essential condition for its development, was also enshrined in Article 4 of this American Declaration:

“Every person has the right to freedom of investigation, opinion, and the expression and dissemination of ideas by any medium whatsoever.” In connection with this right is the recognized right, set forth in Article 15, to rest and to enjoy such rest. For its part, the Universal Declaration of Human Rights (adopted on diez de diciembre de mil novecientos cuarenta y ocho) recognizes the right to culture in Article 27.1, which has the same content as Article 13 of the American Declaration—transcribed above. This right must be understood within the complex framework of human rights recognized in this international Declaration. It is important to emphasize that the right to education is an indispensable prerequisite for guaranteeing the right to culture. Cultural rights prompted the United Nations to adopt the International Covenant on Economic, Social and Cultural Rights in mil novecientos sesenta y seis—ratified by Ley número 4229, de once de diciembre de mil novecientos sesenta y seis. In addition to recognizing the right to education—in Article 13—it recognizes the individual right to culture in Article 15:

“1. The States Parties to the present Covenant recognize the right of everyone:

• a)to take part in cultural life; b) to enjoy the benefits of scientific progress and its applications; c) to benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which that person is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, development, and dissemination of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits derived from encouraging and developing international contacts and cooperation in scientific and cultural matters.” The Charter of the Organization of American States (OAS)—of mil novecientos sesenta y siete—reaffirms the foregoing principles in Article 48:

“The Member States [...] shall ensure the enjoyment of cultural benefits by the entire population and shall promote the use of all means of dissemination for the fulfillment of these purposes.” This provision is referenced by Article 26 of the American Convention on Human Rights, ratified by Ley número 4543, de veintitrés de febrero de mil novecientos setenta, which provides:

“Progressive Development The States Parties undertake to adopt measures, both domestically and through international cooperation, especially economic and technical cooperation, with a view to progressively achieving the full realization of the rights derived from the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, to the extent permitted by available resources, through legislation and other appropriate means.” These international instruments have focused their efforts on three fundamental aspects: the development and promotion of culture, international cultural cooperation, and the right to culture, all of which acquire full binding force because they derive from human-rights treaties duly ratified by our country.

XXI. DEFINITION OF THE SUBJECT OF PROTECTION

THE “CULTURAL PROPERTY” (“BIEN CULTURAL”) AS A PROTECTED LEGAL INTEREST (BIEN JURÍDICO PROTEGIDO). The terminology and conception of the objects protected as historical heritage (patrimonio histórico) have evolved in legal scholarship, such that protection now extends to various categories of property, namely: immovable property of cultural interest—including monuments, natural wonders, and sites; movable property that has neither been incorporated into nor designated by executive decree as part of the Nation’s cultural heritage (patrimonio cultural), but that is of particular significance, especially in light of the international regulations analyzed below; archaeological property—which is in the public domain (dominio público); and ethnographic, scientific, technical, industrial-anthropological, and bibliographic heritage. Protection therefore also encompasses customs, folklore, rites, beliefs, festivities, and cuisine.

All such property has been grouped under the term “cultural property.” This new conception, which is far broader in its understanding of the reality protected by the legal system, originated in Italy and is grounded in the ultimate reason for protecting and safeguarding the property: the cultural value inherent in it, that is, the extent to which it brings us closer to the history of civilization and to the various ways (sic) in which people have lived, thought, and felt across time and space. Cultural value may take many forms, such as the historical, artistic, scientific, archaeological, paleontological, ethnographic, or technical significance embodied in different kinds of property. There must be an interest worthy of preservation, either individually or in connection with other property, as occurs with the protection of urban ensembles, large-scale ensembles, or itinerant ensembles. The essence of such protection lies in the property’s intrinsic interest or value, insofar as it represents the history, art, science, or industry of a people and thereby contributes to the nation’s identity.

XXII. INTERNATIONAL REGULATIONS ON THE SUBJECT

With regard to the development of cultural-property protection as a consequence of the right to culture, it is important to mention the extensive body of international standards adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Organization of American States (OAS) for the purpose of securing, among the States Parties, the effective safeguarding and protection of world and national cultural heritage, which, as noted above, encompasses historical and architectural heritage, movable property, natural heritage, archaeology, and folklore. These comprise a series of Conventions and Recommendations on the subject that constitute legal rules and sources of law in Costa Rica and may be applied directly by this Constitutional Chamber in deciding this matter. Where they have been ratified by our country, they are bodies of law incorporated into our legal system, with authority superior to that of statutes, pursuant to the express provision of Article 7 of the Political Constitution.

Where they have not undergone the procedure prescribed for their proper incorporation, they are sources of law under the terms of Article 48 of the Constitution. In this regard, it must be borne in mind that most of these Conventions and Recommendations were adopted by a specialized agency of the United Nations, namely the United Nations Educational, Scientific and Cultural Organization (UNESCO), whose work is coordinated by the United Nations Economic and Social Council and of which Costa Rica is a Party. As such, they fall within the framework of the rules of the Charter of the United Nations, bearing in mind that one of the purposes for which that organization was created is precisely to “achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (Article 1.3 of the Charter of the United Nations); to that end, the General Assembly is empowered to initiate studies and make recommendations for the achievement of this purpose (Article 13.1.b of the Charter). Articles 55, 57.1, 57.2, and 58, in conjunction with Article 63, recognize the relationship between the specialized agencies and the Organization, particularly Article 64.1, which provides verbatim:

“1. The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized agencies. It may also make arrangements with the Members of the United Nations and with the specialized agencies to obtain reports on the measures taken to give effect to its own recommendations and to recommendations made by the Assembly on matters falling within the Council’s competence.” It must likewise be borne in mind that Articles 5 and 7.2.c of the Vienna Convention on the Law of Treaties (ratified by Ley número 7615, de dieciséis de julio de mil novecientos noventa y seis) recognize the normative force of instruments adopted within international organizations. Regarding the Conventions, Charters, or Recommendations adopted by the International Council on Monuments and Sites (ICOMOS), it must be borne in mind that it is an entity under UNESCO; accordingly, the binding effect and enforceability of its provisions derive from the international organization to which it is subordinate.

Finally, with respect to the Normas de Quito, it should be noted that their binding effect derives from subsections 10) and 12) of Article 140 of the Political Constitution and Article 7.2.a of the Vienna Convention on the Law of Treaties, because they were agreed upon at the meeting of Latin American Presidents in mil novecientos sesenta y siete, where the President of the Republic exercised the role of co-director of international policy (sentencia número 6624-94, de las nueve horas del once de noviembre de mil novecientos noventa y cuatro). Thus, for this Chamber, these are not merely recommendations concerning human rights: if States voluntarily decide to limit themselves or to assume a series of obligations and commitments to give effect to a fundamental right, those obligations and commitments constitute a normative source of constitutional law, because they are acts possessing full normative force within the Costa Rican constitutional legal system and cannot be regarded as mere lists of aspirations and goals to be achieved.

XXIII.In light of the foregoing considerations, the following binding and interpretive principles may be derived from the international regulations on the subject in order to ensure the effective safeguarding of the nation’s cultural heritage:

a.- From the Convention for the Protection of Cultural Property in the Event of Armed Conflict, its Regulations, and its Protocol, adopted at the International Conference of States convened by UNESCO on catorce de mayo de mil novecientos cincuenta y cuatro and signed by Costa Rica on tres de marzo de mil novecientos noventa y seis: respect for cultural heritage—comprising movable and immovable property, monuments of architecture, art, or history, whether religious or secular, archaeological sites, historic ensembles, and collections of scientific materials, books, archives, or reproductions—is established as an international obligation, regardless of its origin or legal ownership in wartime (enemy countries); in peacetime, each country must promote the proper protection of such property; theft, pillage, unlawful appropriation, and vandalism are prohibited, and the implementation of preventive measures to avert such situations is encouraged; the States Parties undertake to submit reports to UNESCO every 4 years on the measures implemented; and the importance of archaeological heritage is recognized; b.- the Recommendation on International Principles Applicable to Archaeological Excavations: approved by the UNESCO General Conference in New Delhi, el seis de diciembre de mil novecientos cincuenta y seis: requires States Parties to subject archaeological excavations (excavaciones arqueológicas) conducted within their territories to strict supervision and prior authorization by the competent authorities, and to require compliance with technical principles in carrying out the excavations; c.- the International Charter for the Conservation and Restoration of Monuments and Sites: approved by the International Council on Monuments and Sites (ICOMOS) in Venice in mil novecientos sesenta y cinco; it is the text of greatest international influence and significance, currently in force and internationally recognized, whose definition of monument encompasses both an individual architectural work and an urban or rural site that bears witness to a particular civilization, a representative stage of development or process, or a historical event, as well as both major and modest works that have acquired cultural significance over time; it recognizes that a monument is inseparable from the history to which it bears witness; it establishes that the protection and conservation of a monument also entails protecting an appropriately scaled setting—that is, protecting its surroundings (entorno); it prohibits new construction, demolition, or alterations that could change the relationships among the volumes, colors, and styles of buildings incorporated into the cultural heritage (patrimonio cultural); it establishes the principle that restoration (restauración) is exceptional in nature and is intended to preserve and reveal the aesthetic and historical values of the monument, while respecting ancient elements and authentic parts, and, to that end, distinguishes between conservation (conservación) and restoration; it establishes the obligation to protect urban sites and groups of buildings, and the need to preserve the identity of the monument by avoiding any essential alteration of its appearance or nature; it establishes the need to prepare inventories and catalogs; the need to retain buildings on their sites, rooted in the ground; and the need to preserve the original furnishings of the property; d.- the Recommendation Concerning the Safeguarding of the Beauty and Character of Landscapes and Sites: approved by the UNESCO General Conference at its 12a. session, in Paris, el doce de diciembre de mil novecientos sesenta y dos: seeks to ensure the preservation of original natural and rural sites, urban landscapes, and other locations, whether or not created by human beings, and their restoration; it establishes the scientific and aesthetic importance of natural sites and urban landscapes insofar as they form part of a heritage that is a fundamental factor in the general living conditions of peoples; the need to implement preventive controls on activities and operations that may affect them, such as special provisions in urban and regional development plans and zoning schemes; the need to establish and maintain nature reserves and parks, as well as to acquire land for the community; the need for specialized services vested with broad powers and made responsible for preservation measures; and it emphasizes educational activities intended to raise public awareness of the importance of this protection; e.- the Normas de Quito: approved at the Meeting of Latin American Presidents in mil novecientos sesenta y siete: develops the principle of “enhancement” (“puesta en valor”), which consists of the economic and social recovery of the monument in accordance with the needs of Latin American society; recognizes the importance of protecting historic centers and their social function through the promotion of tourism; concludes that State protection must extend to the monument’s urban context, its surrounding natural environment, and the cultural property (bienes culturales) it contains—that is, everything relating to the protection of its surroundings; establishes the importance of protecting movable property (bienes muebles) and other valuable heritage objects; and recognizes the urgency of the issue, which requires international cooperation because of the significant importance of recovering cultural heritage, insofar as it represents an economic asset capable of serving as an instrument of progress (the principle of “enhancement” (“puesta en valor”)); f.- the Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage: approved by the UNESCO General Conference at its 17a. session, in Paris, el dieciséis de noviembre de mil novecientos sesenta y ocho: seeks to encourage States to protect all components of the cultural and natural heritage; it includes identification, study, conservation, restoration, physical appearance, and integration into contemporary society, for which purpose the respective inventories must be kept up to date and appropriate maps and documentation must be prepared; it establishes the obligation of States Parties to design programs for the conservation and preservation of the national cultural heritage, in order to preserve its traditional appearance, and to restore areas of cultural heritage damaged by human activity, through specialized services assisted by advisory bodies; g.- the Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works: approved by the UNESCO General Conference at its 15a. session, in Paris, el veinte de noviembre de mil novecientos sesenta y ocho: establishes the guideline that the preservation of cultural heritage must be harmonized with socioeconomic and technological progress; reiterates the need to prepare inventories of cultural property, giving priority to property endangered by public or private works, for use in research and study; emphasizes the importance of implementing precautionary measures (medidas cautelares) so as to facilitate and permit specialized assistance to prevent the adverse effects that such works may have on protected property; advocates the conservation of cultural property “in situ,” that is, in its original location; however, if socioeconomic conditions require its transfer—such as in cases of abandonment or possible destruction—it must be relocated on the basis of appropriate scientific studies; establishes the principle that the preservation of the property must be funded through special budgets or by the public or private works causing the damage (a principle of Environmental Law (Derecho Ambiental): “the polluter pays” (“el que contamina, paga”)); h.- the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property: approved at the tenth UNESCO General Conference, at its 16a. session, in Paris, el catorce de noviembre mil novecientos setenta; ratified by Costa Rica through Ley número 7526, de cinco de julio de mil novecientos noventa y cinco: includes within the concept of cultural heritage all property of ethnological, archaeological, natural, artistic, and technical value; recognizes that the illicit export of cultural property is one of the principal causes of the impoverishment of cultural heritage and therefore commits States Parties to combat such practices by promoting international cooperation and establishing the necessary protective services, such as enacting the relevant regulations, establishing and maintaining inventories and catalogs, promoting and developing specialized scientific and technical institutions—such as museums, libraries, archives, workshops, and laboratories—necessary to ensure the conservation and enhancement of cultural property, controlling archaeological excavations, conserving cultural property “in situ,” reserving certain areas for research, promoting educational action, appropriately publicizing cases involving the disappearance of cultural heritage, establishing barriers both to the removal of property lacking the appropriate certificate and to the importation of stolen cultural property, and taking the necessary measures for its seizure (decomiso) and restitution (restitución); i.- the Convention Concerning the Protection of the World Cultural and Natural Heritage: approved within the framework of the UNESCO General Conference, at its 17a. session, in Paris, el 23 de noviembre de mil novecientos setenta y dos; ratified by Ley número 5980, de veintiséis de octubre de mil novecientos setenta y seis: whose object of protection is cultural heritage, comprising monuments—architectural works, works of monumental sculpture or painting, elements or structures of an archaeological nature, cave inscriptions, and combinations of features—as well as groups of buildings—whether separate or connected—and sites possessing outstanding universal value from the standpoint of science, art, or history; and natural heritage (patrimonio natural); it recognizes the duty of the international community to cooperate in protecting cultural property and therefore establishes the legal framework and institutionalizes practices relating to international cooperation for the protection of the cultural heritage of humankind, which encompasses natural heritage, to be carried out through a trust fund with several sources of funding (mandatory and voluntary contributions from States Parties, contributions from UNESCO, and contributions from international organizations and from public and private institutions, upon a substantiated request from States); all States Parties recognize that responsibility for conserving heritage of universal value located within their jurisdiction (territory) rests primarily with each of them, and they undertake to adopt the necessary measures for that purpose; it reiterates the requirement to prepare inventories of properties within their territory; provides that assistance from States may also take the form of studies, specialized personnel services, professional training, equipment, favorable loans, and non-repayable grants; and establishes educational and informational programs concerning the value of the heritage, the threats it faces, and activities undertaken to implement the Convention; j.- the Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved at the sixth regular session of the General Assembly of the Organization of American States (OAS), in Santiago de Chile, on the sixteenth of June of one thousand nine hundred seventy-six; ratified by Law number 6360, of the twentieth of August of one thousand nine hundred seventy-nine: its subject matter is cultural heritage (patrimonio cultural) in its various categories, namely monuments, objects, fragments of dismembered buildings, archaeological material, buildings, artistic, utilitarian, and ethnological objects, libraries, archives, books, maps, and documents).

The purposes of this Convention are the identification, registration, protection, and monitoring of the assets comprising the cultural heritage of the American nations; the prevention of the illicit import and export of cultural property (bienes culturales); and the promotion of international cooperation for mutual knowledge and appreciation of their cultural property. Accordingly, each State Party is encouraged to establish the relevant domestic regulations, which must promote, at a minimum, the following measures: the registration of public and private collections and of transfers of protected cultural property; the recording of transactions by establishments engaged in buying and selling this type of property; and the prohibition on importing cultural property from other States without the corresponding certification and authorization. The creation and implementation of national cultural-property registries, oversight of archaeological excavations, and international cooperation for the recovery and restitution of stolen property and for fostering mutual knowledge and appreciation of cultural values—through the exchange and exhibition of cultural property and information—are encouraged; k.- the Recommendation Concerning the Safeguarding and Contemporary Role of Historic Areas: approved within the framework of the UNESCO General Conference, at its 19th session in Nairobi, on the twenty-sixth of November of one thousand nine hundred seventy-six: it invites countries to adopt a general safeguarding policy for the preservation of archaeological, paleontological, urban, and rural structures of historical, archaeological, architectural, aesthetic, or sociocultural value within their territories, for which purpose they must establish: a specific system for protecting cultural heritage—historic areas and groups of buildings—at the legal, technical, economic, and social levels, which must influence national, regional, and local planning, guide urban planning, and be embodied in the formulation of objectives and programs; the designation of a specialized body or institution responsible for carrying out this work; the preparation of inventories of the property to be protected—such as public or private buildings, open spaces, and their vegetation—with supplementary analytical summaries for each, insofar as they constitute irreplaceable universal heritage; an obligation for governments and their citizens to safeguard historic areas and integrate them into community life or promote their economic and social revitalization, that is, to foster commerce, crafts, cultural activities, residential use, and tourism in them—the principle of “enhancement” (“puesta en valor”); comprehensive protection of cultural heritage, particularly historic areas, thereby extending protection to all their constituent elements, including buildings, spatial structure, surrounding areas, and human activities, however modest they may be—the setting (entorno); effective protection of cultural heritage, which entails preventing every type of physical deterioration, especially that resulting from inappropriate use, the addition of parasitic structures, and abusive or insensitive alterations that damage its authenticity, as well as deterioration caused by any form of pollution; reaffirmation of the principle that restoration is exceptional in nature and, when undertaken, must be based on scientific principles; State assistance for the conservation of this heritage, consisting of planning, specialized technical assistance, and the granting of donations, tax benefits, subsidies, or appropriate soft loans for these purposes to private owners and users, which are subject to compliance with certain conditions imposed in the public interest, such as ensuring the integrity of buildings, permitting visits to properties and access to parks, gardens, or sites, allowing photographs to be taken, and permitting inspections, among others; encouragement of the creation of nonprofit foundations and associations as advisory bodies in this field; promotion of systematic research and study to train specialists and craftspeople in urban and land-use planning, the deterioration of materials, the application of modern techniques to conservation work, and the craft techniques essential to safeguarding this heritage, as well as education—at the school, post-school, and university levels—to raise public awareness of the importance of such protection; and a commitment to international cooperation in this field, both with other States and with international, intergovernmental, and private organizations, particularly the UNESCO Documentation Centre (ICOMOS and ICOM); l.- the Recommendation Concerning the International Exchange of Cultural Property: approved within the framework of the UNESCO General Conference at its 19th session, in Nairobi, on the twenty-sixth of November of one thousand nine hundred seventy-six: it proceeds from the consideration that all cultural property forms part of the common cultural heritage of Humanity and that each State bears responsibility in that regard, not only for the benefit of its nationals but also for the international community, and therefore promotes the circulation of such property among cultural institutions in different countries in order to enrich international cultural heritage and foster its better use; for this purpose, States undertake to implement legal measures to eliminate tariff and customs barriers so as to facilitate the disinterested bilateral or multilateral exchange of cultural property; the creation or implementation of registries of requests and offers available for exchange; it establishes the operational principles governing this type of exchange—insurance, financial assistance, determination of the legal status of such property, and assistance from specialized bodies; the need for international cooperation to carry out this task; and the mechanisms necessary to combat illicit trafficking in cultural property; m.- the Recommendation for the Protection of Movable Cultural Property: approved at the UNESCO General Conference, at its 20th meeting, in Paris, on the twenty-eighth of November of one thousand nine hundred seventy-eight: it requires States to intensify measures for preventing and managing the risks to which movable cultural property (bienes culturales muebles) of archaeological, artistic, scientific or technical, craft, anthropological, or ethnological value may be exposed—such as manuscripts, handicrafts, books, documents of special interest, maps, furniture, tapestries, rugs, costumes, musical instruments, and zoological, botanical, or geological specimens—in order to ensure effective protection of such property and reduce the cost of covering the corresponding risks; it establishes the principle that protection and risk prevention are far more important than compensation in the event of deterioration or loss of the property, because the essential purpose is to preserve cultural heritage rather than replace irreplaceable objects with sums of money; the need for the systematic establishment of inventories and registers relating to movable cultural property, recording its identifying characteristics and specifications with the greatest possible precision and using current methods; encouragement for public and private museums and similar institutions to strengthen risk prevention by adopting practical security systems and devices—securing the property and ensuring appropriate conditions for storage, exhibition, and transportation; the granting of credit and financial facilities, as well as tax incentives and/or benefits, for these purposes; the necessary training and specialization of the staff of these institutions; the establishment of an official body responsible for advising and organizing museums; promotion of public education and information in this regard, to raise awareness of the importance and value of cultural property and the need for its protection; the adoption of criminal, civil, and administrative penalties; and the promotion of international cooperation and coordination to combat damage, theft, abduction, and other unlawful acts that endanger cultural property; n.- the ICOMOS International Charter for the Protection of Historic Towns: approved in Washington, in one thousand nine hundred eighty-seven: it defines the principles and objectives, methods, and instruments of appropriate action to maintain the quality of life in historic towns, so as to harmonize individual and social life with the objective of perpetuating the body of property constituting the memory of humanity; it encourages the protection of large and small towns and neighborhoods together with their surroundings, which, in addition to their historical value, embody values characteristic of traditional urban civilizations or are threatened by degradation, destruction, or disintegration; it establishes the principle of careful planning as part of a coherent economic-development policy, carried out by a multidisciplinary team of professionals to ensure the effective rehabilitation of towns and neighborhoods; the values to be preserved are the historic character of the town and the body of material and spiritual elements that express its image; the primary objective of protective action is the improvement of the habitat, understood as the urban environment; the plan for the permanent maintenance of infrastructure begins with the implementation of preventive or precautionary measures (medidas preventivas o cautelares), followed by the establishment of a special protection plan; preservation permits contemporary elements provided that they do not impair the harmony of the whole and contribute to its enrichment; it establishes the principle of regulating traffic within historic towns and neighborhoods and the absolute prohibition on building roads within them; and, lastly, the need to implement preventive measures against natural disasters and potential hazards, such as noise, pollution, contamination, waste, and traffic, among others; o.- Recommendation on the Safeguarding of Traditional Culture and Folklore: adopted at the UNESCO General Conference, at its 25a. session, in París, on quince de noviembre de mil novecientos ochenta y nueve: it is based on the principle that traditional culture and folklore form part of the universal heritage of humanity, constitute a powerful means of bringing existing peoples and social groups closer together and affirming cultural identity, and are an expression of living culture, and that States must play a decisive role in safeguarding and disseminating traditional culture and folklore, particularly by taking action to foster and promote them; for this reason, language, literature, music, dance, games, mythology, rituals, customs, crafts, architecture, and other arts, among others, are protected. It establishes the need to promote a general system for the classification, identification, and registration of both institutions and traditional culture and folklore.

XXIV. DEFINITION OF HISTORIC-ARCHITECTURAL HERITAGE (PATRIMONIO HISTÓRICO-ARQUITECTÓNICO)

In light of the foregoing considerations, historic-architectural heritage falls within the classification of cultural property (bien cultural) and therefore constitutes a special type of property characterized by a specific regime of State intervention aimed at preserving the property. This status arises from the very nature and objective circumstances of the property. It encompasses the body of cultural properties (bienes culturales) of an architectural nature, whether standalone buildings or groups of buildings, natural sites or infrastructure works, urban or rural, privately or State-owned, that come from the past or are the product of innovative techniques and therefore represent the collective experience of a particular society, community, or ethnic group; as such, they confer a group, popular, or national identity. Their designation is associated with relevant historical or cultural circumstances or with sociocultural patterns of importance to the community, region, or country.

They also contribute to technical, construction, and/or functional development in architecture and therefore possess architectural, historical, or artistic value of significance. They may also exhibit formal typological, stylistic, and urban-planning characteristics that contribute to the distinctive traditional character of their immediate surroundings. Accordingly, the determination of historic-architectural heritage—as such—is an indeterminate legal concept (concepto indeterminado) for legal science and entails reconciling the various interests at stake; that is, it requires an evaluative judgment based on contributions from nonlegal disciplines of a technical nature, such as archaeology, architecture, science, technology, history, or art, in order to determine the cultural value (artistic, scientific, etc., inherent in that property). Thus, the Administration does not act at its discretion; rather, this entails an objective evaluative process.

It is important to emphasize that the determination of historic-architectural property includes both the delimitation of the property and that of the surroundings necessary for its proper protection and enhancement (puesta en valor), which are precisely what justify its protection; it also includes the geographic area to which it belongs, namely, the natural site constituting its surroundings (an integrated conception of the environment).

XXV.For purposes of this analysis, the following quotation from the French writer Víctor Hugo is significant, apart from any legal technicalities:

"There are two things in a building: its use and its beauty. Its use belongs to the owner; its beauty belongs to everyone. Therefore, the owner has no right to destroy it." Thus, the enjoyment of the collective interest is implicated in these properties and constitutes the highest expression of the social function of property (función social de la propiedad), we legal scholars would add. It is in this sense that the definition of architectural heritage (patrimonio arquitectónico) is framed, insofar as it is a physical construction and therefore has an evident current or potential material value attributable to the parcel and the structures built upon it; it is also assigned an additional value or price of an intangible nature, namely, the building’s cultural value, derived from its historical and artistic attributes and from the symbolic force of the social imagination and collective memory, which is difficult or impossible to determine in monetary terms.

In view of the foregoing, the Ley de Patrimonio Histórico-Arquitectónico, número 7555 expressly declares "[...] the research, conservation, restoration, rehabilitation, and maintenance of historic-architectural heritage" to be in the public interest (párrafo segundo del artículo 2 de la Ley); this demonstrates the importance and significance that the legislature assigns to cultural heritage, thereby recognizing the duties arising from the constitutional provisions cited above, namely, artículos 50 y 89.

XXVI. PROTECTION OF THE SURROUNDINGS

Also significant in this regard are elements that may be considered integral to buildings and form part of them or of their ornamentation and that, if separated, would constitute a complete whole readily applicable to other structures or uses different from the original, even if their removal would not visibly impair the historical-artistic merit of the immovable property (inmueble) to which they are attached. Likewise, protection—in most legal systems—extends to the surroundings, the latest necessary achievement in the regulatory evolution of this field, which are defined as the space that, while not possessing cultural value in itself, directly influences the preservation and enjoyment of the areas that do possess such value; that is, protection progresses from the monument to the ensemble and from there to the surroundings, which consist of the broader space in which they are situated.

It is a preventive or buffer area intended to defend and preserve the setting specific to monuments and historic ensembles and is known in French legislation as the "setting of the monument." Thus, the legal protection and administrative action applied to these areas are founded on the proper preservation of the cultural spaces they serve. The cultural value of the surroundings is so important that failure to protect them undermines the monument’s cultural value. For this reason, urban-planning regulations (ordenaciones urbanísticas) adopted to safeguard cultural property—such as those concerning uniform façade colors, the architectural style that may be used, building heights, and others—are not only valid and legitimate but, above all, necessary; these fall within the jurisdiction of the municipalities—exclusive urban jurisdiction, pursuant to constitutional case law (in this regard, see, among others, judgments números 2153-93; de las nueve horas veintiún minutos del veintiuno de mayo de mil novecientos noventa y tres; 5305-93, de las diez horas, seis minutos del veintidós de octubre de mil novecientos noventa y tres; 6706-93, de las quince horas veintiún minutos del veintiuno de diciembre de mil novecientos noventa y tres; 3494-94, del doce de julio de mil novecientos noventa y cuatro; 4205-96, cited above, and número 5445-99, de las catorce horas treinta minutos del catorce de julio de mil novecientos noventa y nueve)—which must coordinate their actions in this area with the Ministerio de Cultura, Juventud y Deportes.

Thus, the techniques employed in land-use planning (ordenación del territorio) and urban planning (planeamiento urbanístico) have a duty, within their respective spheres, to adopt all measures necessary to preserve the space in which monuments, sites, ensembles, or historic centers are located. One example of this protection is artículo 7 de la Ley 5160, de veintiuno de diciembre de mil novecientos setenta y dos, which establishes protection of the surroundings in relation to the Teatro Nacional:

"The façades of buildings constructed on the block where the Teatro Nacional is located must receive approval from the Departamento de Urbanismo del Instituto Nacional de Vivienda y Urbanismo and the Junta Directiva del Teatro Nacional." (The public bodies or institutions responsible for protecting this right will be identified subsequently, as it involves both powers of an urban nature—which constitutional case law has indicated are local, primarily and exclusively, and therefore belong to the municipalities—and powers arising from the subject matter at issue, insofar as the law assigns the Ministerio de Cultura, Juventud y Deportes responsibility for developing and promoting the country’s culture, thereby establishing it as the national advisory body in this field).

XXVII.With regard to this point, reference to French legislation (French Historical Monuments Act—Loi sur les monuments historiques, du 31 décembre de 1913—) and Spanish legislation (Ley de 16, de 25 de junio de 1985) is illustrative, as they establish regulations for structures located near buildings of a historical, artistic, or archaeological nature, requiring such structures to harmonize with them. Specifically, under French regulations, general protection is afforded to buildings aligned with or situated within the visible field of a listed building (edificio clasificado), within a perimeter not exceeding quinientos metros, which may, if necessary, be expanded by executive decree (inciso c) del artículo 1°). The foregoing makes clear the need to integrate cultural heritage into the broader space surrounding it, as reflected in the UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites—de 1962—; the ICOMOS International Charter for the Conservation and Restoration of Monuments and Sites—de 1964—; the conclusions of the meeting of Latin American Presidents known as the Normas de Quito—de 1967—; the UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage—de 1972—; the ICOMOS International Charter for the Conservation of Historic Towns and Urban Areas—de 1987—; and the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore—de 1989—.

All of these international instruments defined the surroundings as including both immediately adjoining properties and adjoining or more distant properties, provided that an alteration to them could affect the intrinsic values of the property in question or its viewing, appreciation, or study; they also encompass the subsoil and the developed or undeveloped space that provides an environmental setting for the property. The surroundings are so closely linked to the monument that its preservation is inseparable from the treatment afforded to them, which is what justifies such treatment.

XXVIII. THE REGIME FOR REMOVAL FROM CULTURAL HERITAGE STATUS (DESAFECTACIÓN DEL PATRIMONIO CULTURAL)

It is extremely important to clarify that even (sic) though inclusion in the Nation’s historical-architectural heritage (patrimonio histórico-arquitectónico), and consequently its dedication to a public purpose (afectación) or assignment of a public function—in this case, its designation for the contemplation and enrichment of the Nation’s cultural heritage—is generally effected by an executive decree issued by the Ministerio de Cultura, Juventud y Deportes, since nothing prevents it from being effected by a Law of the Republic, its removal from such status (desafectación) cannot arise from a regulation; therefore, as an integral part of the environment, as explained above, it must be effected by a law enacted for that purpose, following a technical and objective study establishing that the building in question has lost the cultural value that justified its dedication, whether historical, artistic, scientific, or archaeological, under the terms established in Article 38 of the Ley Orgánica del Ambiente. This clarification is made so that the authorities and officials of the Ministerio de Cultura, Juventud y Deportes may take due note thereof, as applicable.

XXIX. OWNERSHIP OF HISTORICAL-ARCHITECTURAL HERITAGE (TITULARIDAD DEL PATRIMONIO HISTÓRICO-ARQUITECTÓNICO)

In this regard, it is important to emphasize that—as with the environmental regime, a subject with which it closely parallels, as previously noted—it encompasses both State-owned property, which, solely by virtue of the declaration of inclusion, acquires the characteristics of public-domain assets (bienes demaniales), insofar as such property is assigned to a specific public service or function, in this case the contemplation of the building, because the purpose of protecting, conserving, and preserving this type of property is to ensure the broadest possible public access to its contemplation and enjoyment, as it is the legacy of a people’s collective capacity (culture), and, by reason of its special public-domain status, is not subject to acquisitive prescription (imprescriptible), is inalienable (inalienable), and is immune from attachment (inembargable); as well as privately owned property, for which a declaration of inclusion in the national heritage in no way entails the transfer of ownership to the State (as did occur under the repealed legislation, namely Ley número 5397), but instead establishes, while ownership remains vested in a private party, that the particular building possesses a historical-architectural interest justifying its maintenance and conservation for the benefit of the national community.

Thus, with respect to this type of property, the essential content of the right of ownership is respected under the terms established in Article 45 of the Constitución Política, so that it may be mortgaged, transferred, acquired through adverse possession (usucapión), alienated, or otherwise conveyed, with the sole proviso that, in every case, the property remains subject to the cultural-heritage regime, which gives rise to an obligation on the possessor or owner to maintain and conserve the building or structure located on the property. Such property is subject to a “sui generis” legal regime, ordinarily dual in nature, because its physical embodiment may be held publicly or privately, as provided in the Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, número 7555, de veintisiete de setiembre de mil novecientos noventa y cinco, Article 2, first paragraph of which states verbatim:

“Historical-architectural heritage Any publicly or privately owned immovable property of cultural or historical significance that has been so declared by the Ministerio de Cultura, Juventud y Deportes in accordance with this law forms part of the country’s historical-architectural heritage.” The foregoing means that the focal point of this protection lies not in the ownership regime but in the property’s status as possessing a significant intangible value and being intended for collective enjoyment, which those holding it must make possible, without prejudice to other uses and benefits compatible with the property. It is also important to recognize that it is absolutely and materially impossible, even for developed countries, to expropriate the entirety of the cultural heritage so that the State may assume responsibility for maintaining and conserving this type of property: first, because of the lack of public financial resources to carry out such a project; and second, because doing so would produce the phenomenon known as the “museumification” (museificación) of cultural heritage, which violates one of the basic principles governing the protection of such property, namely the “enhancement of the property” (puesta en valor del bien), meaning the incorporation of historical-architectural property into economic and social activity, as will be explained in subsequent recitals (Considerandos).

XXX.THE REGIME FOR THE PROTECTION OF HISTORICAL-ARCHITECTURAL HERITAGE (RÉGIMEN DE PROTECCIÓN DEL PATRIMONIO HISTÓRICO-ARQUITECTÓNICO). As previously noted, State-owned property incorporated into the Nation’s cultural heritage acquires the characteristics of public-domain assets, also known as dominical assets (bienes dominicales); that is, it is dedicated to a public function, in this case the contemplation of the particular building, since the purpose of protecting, conserving, and preserving this type of property is to ensure the broadest possible public access to its contemplation and enjoyment, as it is the legacy of a people’s collective capacity (culture), and, by reason of its special public-domain status, is not subject to acquisitive prescription, is inalienable, and is immune from attachment, under the terms established in Articles 261 through 263 of the Código Civil. The legal nature of such property was previously summarized by this Tribunal in judgment número 2306-91, de las catorce horas cuarenta minutos del seis de noviembre de mil novecientos noventa y uno:

“The public domain (dominio público) consists of property that, by the legislature’s express will, has a special purpose of serving the community and the public interest. Such property is known as dominical assets, public-domain assets, or public property or things; it does not belong individually to private parties, is intended for public use, and is subject to a special regime outside private commerce. In other words, it is dedicated by its nature and purpose. Consequently, such property belongs to the State in the broadest sense of the term, is dedicated to the service it provides, and that service is invariably essential by virtue of an express rule. The characteristic features of such property are that it is inalienable, not subject to acquisitive prescription, immune from attachment, incapable of being mortgaged or encumbered under the terms of Civil Law, and subject to administrative action in lieu of possessory remedies (interdictos) for recovery of possession.

Because it is outside private commerce, such property cannot be possessed, although a right of use may be acquired, but not a right of ownership. A use permit (permiso de uso) is a unilateral legal act issued by the Administration in the exercise of its functions, through which the beneficial interest (dominio útil) in the property is placed in private hands, while the State always retains direct ownership (dominio directo) over the thing. The precarious nature of every right or permit of use is inherent in the institution and refers to the Administration’s ability to revoke it at any time, whether because the State needs to occupy the property fully, because of the construction of a public work, or for reasons of safety, hygiene, or aesthetics; all of this insofar as, whenever a conflict arises between the property’s purpose and the permit granted, the natural use of the public property must prevail.

Consequently, the national regime governing public-domain property, [...] places it outside private commerce, and therefore any permits granted shall always be precarious and may be revoked unilaterally by the Administration whenever necessity or the general interest so requires.” For its part, with respect to privately owned property incorporated into the cultural heritage, this special protective regime translates into a series of restrictions in the social interest (limitaciones de interés social) on that property, permitted under Article 45 of the Constitución Política; that is, the essential content of the right of ownership is preserved, so that the property may be mortgaged, transferred, acquired through adverse possession, alienated, or otherwise conveyed, and its economic and social utility may be exploited, with the sole proviso that, in every case, the property remains subject to the cultural-heritage regime, because this status must be recorded in the Registro Público de la Propiedad and gives rise to a series of obligations incumbent upon the possessor or owner to guarantee the maintenance and conservation of such property.

This entails, first, an absolute prohibition against the partial—and still more so the total—demolition of the structure, as well as the obligation to conserve and maintain it and, where necessary, to restore it, in order to facilitate the best possible display or contemplation of the building by the general public, which constitutes the principal purpose of this legal protection, as previously noted. Of course, such maintenance entails a prohibition against performing internal or external work that directly affects the building’s structure, style, or visibility, or its surroundings, without prior authorization from the competent body, namely the Ministerio de Cultura, Juventud y Deportes, as well as a prohibition against placing signs or commercial or advertising notices, signals, or symbols on the façades of buildings incorporated into the protective regime when these obstruct their contemplation, without prior authorization from those authorities.

The owner or possessor is also required to permit or facilitate inspection of the property by the competent authorities—specialized personnel from the Ministerio de Cultura, Juventud y Deportes. Lastly, it must be noted that the use of such property is subordinate to the requirement that the values warranting its conservation not be endangered. Article 9 of Ley 7555 establishes the obligations arising for owners, possessors, or holders of rights in rem (derechos reales) over property from its incorporation into the cultural heritage, as follows:

• a)Properly conserve, preserve, and maintain the property.
• b)Report on its condition and use to the Ministerio de Cultura, Juventud y Deportes when requested to do so.
• c)Permit the placement of identifying markers specified in the declaration concerning the property.
• e)Permit the inspection visits that accredited officials of the Ministerio must conduct periodically and cooperate with them, to the extent possible, in determining the condition of the immovable property and the manner in which its protection and conservation are being addressed.
• f)Include in the annual ordinary budget the appropriations necessary to fulfill the obligations prescribed by this law, when the holder of the right is a public entity.
• g)Comply with the prohibition against placing plaques and advertising signs of any kind that, because of their size, placement, or message content, hinder or interfere with contemplation of the property.
• h)Obtain authorization from the Ministerio de Cultura, Juventud y Deportes before repairing, constructing, restoring, rehabilitating, or carrying out any other kind of work affecting the buildings or their appearance.
• i)Suspend the processing of subdivision (parcelación), building, or demolition permits. If the requested work does not impair the property’s historical or architectural value and the Ministerio de Cultura, following a report from the Comisión, so informs the authority processing the permits, those permits may be granted.” These obligations (burdens or duties) imposed on property shall be constitutional insofar as they satisfy the requirements that legitimize limitations on private property (limitaciones a la propiedad privada), as explained in Considerando IX.- of this judgment. That is, first, they must be established by a law approved by a qualified majority (mayoría calificada), meaning with the approval of two-thirds of all the members of the Legislative Assembly (thirty-eight votes), as is the case with the Historical-Architectural Heritage Law (Ley del Patrimonio Histórico-Arquitectónico)—a point that will be analyzed in detail below.

Second, the limitations imposed must be general; that is, they must affect a broad class of persons, which concerns not only their addressees but also the factual circumstances under which they apply. Third, they must respect the natural use of the real property, so that it retains its productive identity or economic value and the owner may exercise the essential attributes of ownership; in other words, they must allow the owner to exploit the property normally, excluding, of course, the portion or function affected by the limitation imposed by the State (judgments number 979-91, 5893-95, 2345-96, and 4605-96, all cited supra). Accordingly, in addition to being useful, the burden must be necessary, reasonable, or appropriate, must be supported by a compelling social need, and must therefore be exceptional in nature; consequently, such burdens must be intended to satisfy an overriding public interest.

The reasonableness of the limitation lies in its suitability for the purpose and interest (value) that justify it. As a corollary, burdens or duties imposed for the protection of cultural heritage (tutela del patrimonio cultural) that affect the essential attributes of ownership shall be unconstitutional and therefore compensable. Those attributes are the ones that permit the natural use of the thing within current socioeconomic conditions; burdens that eliminate the nature of the property or make use of the thing impossible by preventing the “commercial use of the property” or its “economic and social value” would constitute de facto expropriations (expropiaciones de hecho) and would consequently violate the constitutional provision contained in Article 45. Likewise, burdens of an individual or specific nature shall be unconstitutional because they are equivalent to actual expropriations.

In all cases, the rules protecting cultural heritage must be interpreted in the manner most favorable to facilitating and making effective the preservation of cultural property (bienes culturales); nevertheless, this does not alter the requirement that the burdens borne by owners due to a property’s historical status must always be proportionate and appropriate to the significance of the public purpose at stake and must respect the fundamental rights involved. In all cases, it must be borne in mind that the limitations imposed on property of historical-architectural interest (propiedad de interés histórico-arquitectónico) are intended to ensure its preservation in order to enhance and promote the objectives of art, history, and national culture; these limitations arise from the need to establish a fair social balance between individual and collective interests.

XXXI. STATE RESPONSIBILITY FOR THE PROTECTION OF CULTURAL HERITAGE

THE ADMINISTRATION’S OBLIGATION TO PARTICIPATE IN, PROMOTE, AND COOPERATE WITH THE PROTECTIVE FUNCTION FOR CULTURAL HERITAGE (COMPENSATION AND INCENTIVE SYSTEM). Within this special protective system, the role performed by State authorities, as guarantors of the preservation and enrichment of cultural heritage, is of fundamental importance in facilitating access by all citizens to the property encompassed by it. State action is thus justified by the fact that historical-architectural heritage, like every form of cultural heritage, is by its very nature dual—that is, both individual and social. As a third-generation fundamental right (derecho fundamental de tercera generación) arising within the framework of a Social State under the Rule of Law (Estado Social de Derecho), respect for this right by the State is not limited to an obligation not to impair the right or interfere in the individual’s private sphere—a conception typical of the liberal approach—but instead entails the adoption of specific actions and the provision of concrete services by public authorities.

In light of this reality, the State’s position cannot be—and has not been—one of indifference, since public authorities must respond to new needs through institutional and administrative measures, among which cultural legislation must obviously be included. Public authorities are therefore obligated to protect cultural heritage against illicit export and plunder, facilitate its recovery when it has been illegally exported, promote its dissemination so that such property becomes known, promote and encourage international cooperation and the exchange of cultural, technical, and scientific information and property, and provide financial assistance and advice so that private parties may comply with the obligations imposed by the inclusion of their real property in the cultural-heritage system (régimen de patrimonio cultural). They must also prevent any act or omission that endangers the values of the property comprising the heritage or interferes with fulfillment of the social function (función social) recognized in this type of property.

This is reflected, for example, in regulations governing the placement of commercial and advertising signs; the adoption of security systems in institutions where cultural property is displayed (insurance policies); the training of staff both in museums and in public administrative entities responsible for protecting this right; and the provision of financial facilities such as low-interest loans and tax exemptions. In this connection, it is important to mention the system of incentives (or compensation) established in Costa Rica’s Historical-Architectural Heritage Law (Ley de Patrimonio Histórico-Arquitectónico de Costa Rica), number 7555, of twenty-seven September nineteen ninety-five, which expressly establishes a series of incentives for owners or possessors of property included in the cultural heritage (Chapter III., Articles 13 through 17). These include exemption from payment of real property tax and the tax on luxury construction, as well as from the revenue stamps required for building permits (Article 14); authorization for public institutions to make donations and investments intended for works and for acquisitions by the State (Article 15); and the obligation of the Ministry of Culture, Youth and Sports to arrange low-interest credit facilities for private parties or public or private entities in order to finance preservation, restoration, maintenance, and rehabilitation work on property declared to be of historical-architectural interest (Article 17).

In this regard, it must be borne in mind that subsection k) of Article 22 of the Tax Simplification Law (Ley de Simplificación Tributaria), number 8114, of four April two thousand one, repealed Articles 13 and 22 of Ley 7555, which recognized an income-tax exemption for “[...] expenses deductible for income-tax purposes, donations and investments intended for the purposes of this law, as well as improvements made by the owner, possessor, or holder of rights in rem (derechos reales) to real property declared to be of historical-architectural interest, provided that they have been previously authorized by the Ministry of Culture, Youth and Sports”; and “u) improvements made by the owner, possessor, or holder of rights in rem to real property declared to be of historical-architectural interest, as well as the amounts of donations or investments intended for the purposes of this law, subject to a favorable report from the Ministry of Culture, Youth and Sports.” The Chamber notes that, although minimal in scope, this compensation system falls within the requirements established in the relevant international Conventions and Recommendations—described above—yet considers that the measures are neither sufficient nor adequate to provide effective protection and safeguarding of the Nation’s cultural heritage.

Under other legal systems (such as those of France or Spain), tax exemptions are complete, recognizing not only an exemption from property tax but also exemptions relating to municipal services and, of course, income tax. State assistance is also reflected in the allocation of substantial resources for the proper preservation and maintenance of this property, including specialist advice and the actual granting of favorable credit to carry out the relevant work. It shall be incumbent upon legislators to provide the mechanisms and instruments necessary for this compensation and incentive system to be sufficiently adequate to achieve a genuine balance in relation to the burdens and limitations imposed on owners and possessors of property included in the historical-architectural heritage. They are required to make their own property available for the benefit of the Nation as a whole, and it is therefore not only fair but necessary for society (the State) to grant them a series of benefits as compensation for the “sacrifice” imposed upon them.

This would also reverse the state of inadequate protection in which our country’s cultural heritage remains, a situation that results in the virtually immediate demolition of the structures and buildings that authorities seek to include in the historical-architectural heritage, as architect Roberto Villalobos Ardón observed at the Property, Environment and Urban Planning Seminar (Seminario Propiedad, Ambiente y Urbanismo), held in nineteen ninety-five:

“A colleague once told me that there was no easier, more effective, more direct, faster, more expeditious, or less complicated way to get rid of an old building—that is, a heritage building—than to declare it heritage. The State’s inability to compensate the owner leads to its virtually immediate deterioration, and I have encountered cases in which, within two years, something that was more or less still standing ends up demolished: houses in Curridabat, Escazú, Santo Domingo, etc. ...”

XXXII.Likewise, the State is obligated to undertake proper planning in this area, that is, to establish appropriate protection policies in the National Urban Development Plan (Plan Nacional de Desarrollo Urbano), defining specific objectives and tasks as well as the allocation and planned provision of the resources necessary to carry them out. In this regard, the Ministry of Culture, Youth and Sports is the body responsible for this field and, as an advisory and responsible body, has primary responsibility for preserving and maintaining the country’s historical-architectural heritage under the terms of Article 3 of Law number 7555. As “the highest authority in the field,” it is obligated to “[...] provide the necessary advice to the owners, possessors, or holders of rights in rem over the property comprising that heritage, so that the purposes of this law may be fulfilled.”

In any event, the authority vested in local governments with respect to urban planning (planificación urbana) must not be overlooked; this obviously includes the protection and safeguarding of cultural heritage (patrimonio cultural), although no longer as the responsible institution, but rather as a collaborator of the Ministerio de Cultura, Juventud y Deportes. In this regard, the statements made in judgments number 55445-99, at fourteen hours thirty minutes on catorce de julio de mil novecientos noventa y nueve, and number 2001-05737, at fourteen hours forty-one minutes on veintisiete de junio del dos mil uno, concerning the duty of municipalities to coordinate with institutions vested with authority at the national level, are particularly relevant—in this case, coordination between local governments and the Ministerio de Cultura, Juventud y Deportes, which has been assigned a special role in protecting and preserving cultural heritage.

The obligation of coordination among the various public agencies arises in order to avoid a purported conflict over the precedence of the national interest versus the local interest, so that the paramount interest of the Nation may prevail. The foregoing means that local governments must implement in their regulatory plans (planes reguladores) the measures necessary to assist in protecting such property, as occurs in European countries—such as Spain and France—so that they effectively enforce the relevant regulations governing the placement of signs and commercial advertisements, as well as traffic management, or the maintenance of beautification and sanitation in their respective cantons, in order to preserve an ecologically balanced, healthier, and more participatory urban environment. This translates into tasks such as garbage collection, traffic control, the beautification and maintenance of parks, and the promotion of cultural and educational programs, all of which must, of course, be carried out with the guidance of the responsible personnel of the Ministerio de Cultura, Juventud y Deportes.

XXXIII.THE CONSTITUTIONAL PRINCIPLE OF THE “VALORIZATION” (“LA PUESTA EN VALOR”) OF MONUMENTS, WHICH FRAMES THE PROTECTION OF HISTORICAL-ARCHITECTURAL HERITAGE (PATRIMONIO HISTÓRICO-ARQUITECTÓNICO). This principle is essential and specific to the safeguarding of historical-architectural heritage. It began to take shape in the UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites (1962) and the ICOMOS International Charter for the Conservation and Restoration of Monuments and Sites (1965), but its development as such began with the Quito Norms (in 1967), precisely in response to the particular conditions of the Latin American continent, characterized by an underdeveloped economy and culture. Consequently, it was—and remains—necessary and mandatory to frame any action for the conservation of cultural heritage within that reality so that it is consistent with it.

This principle was subsequently included in the UNESCO Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas (1976) and the ICOMOS International Charter for the Conservation of Historic Towns and Urban Areas (1987). It is the response to the phenomenon known as the “museification” (“museificación”) of cultural heritage, under which such property is intended to pass into the exclusive ownership of the State for its preservation and maintenance, thereby removing it from society’s daily life. By contrast, applying this principle means that safeguarding cultural heritage must promote its proper economic and social utility, but in such a way as not to jeopardize its cultural value; that is, it seeks to promote the usefulness of these buildings so that they may participate and remain within society’s economic and social activity, while at the same time maintaining and preserving the spiritual value—artistic, architectural, historical, technical, archaeological, etc.—that prompted and justifies the special protective regime (régimen tutela especial).

Thus arises the principle that monuments are intended to fulfill a social function, namely, to contribute to national culture and identity; in other words, the aim is to revalue monumental heritage in accordance with the public interest and for the benefit of the nation, without thereby impairing the rights of the private parties involved—such as property rights or freedom of commerce—since the goal is to establish these buildings as instruments of progress and development, first for their owners and, second, as a multiplier of the country’s economic development. The purpose is thereby to give present value to an economic resource and make unexploited wealth productive through the revaluation process (proceso de revalorización), which, far from diminishing its purely historical or artistic significance, enhances it by bringing it from the exclusive domain of learned minorities into the knowledge and enjoyment of the popular majorities.

This is based on the premise that monuments form part of nations’ economic resources and, of course, those of their owners or holders of a property right (derecho real); efforts must therefore be mobilized to secure their best use as an indirect means of fostering the country’s development, whether by facilitating tourism and commerce or even for residential use. In many countries, affordable housing programs have been established through the application of this principle. In any event, the use made of this type of building must encompass activities that maintain the property’s cultural value, that is, activities that do not endanger the property as such. Valorization means inhabiting the building under harmonious objective and environmental conditions that, without distorting its nature, highlight its features and enable its optimal use; it therefore entails a systematic and eminently technical action aimed at using each and every one of these properties in accordance with its nature, emphasizing and exalting its features and merits until it is fully capable of performing the new function for which it is intended, namely, the social function it fulfills at the objective urban-planning level and at the meta-functional level.

Accordingly, conservation and development are not contradictory but closely interconnected, and the latter presupposes the former, insofar as heritage provides major benefits for tourism or serves as an excellent option for housing programs, allowing significant construction savings—of up to 35% of the total value of a new project—and producing a better distribution of labor and capital, thereby contributing to the social and economic regeneration of that sector. Likewise, valorization has a beneficial indirect effect on the urban perimeter, since the diversity of monuments and buildings of marked cultural, historical, artistic, and architectural interest located in cities forms part of the urban landscape, that is, the environment—according to the comprehensive meaning explained above—and therefore has a multiplier effect on the rest of the area, which is revalued as a whole as a consequence of the urban valorization and rehabilitation plan (urban planning).

It should be clarified that this principle is not exclusive to historic districts (conjuntos históricos), but applies to all historical-architectural heritage; nevertheless, its application is more readily apparent in the former, such as the city of Habana Colonial, San Juan Viejo in Puerto Rico, or Antigua Guatemala, places where the everyday economic and social activity of an urban center has been encouraged, including commercial, artisanal, tourism, and residential activities. The sole difference is that the buildings comprising these centers are subject to a special regime under which their demolition or total or partial destruction is prohibited, their owners are required to preserve and maintain them, and they are subject to traffic-management regulations—which are much stricter and more closely controlled—and beautification regulations, including those governing the placement of signs and advertisements” (emphasis not in the original).

More recently, in resolution no. 2017016787 at 9:20 hours on 20 de octubre de 2017, this Court held:

“VII.- On the safeguarding of cultural heritage. As this Court has stated, cultural property (bienes culturales) constitutes the product and testimony of the different traditions and spiritual achievements of the past and is a fundamental element of the identity of peoples; its preservation is therefore indispensable. This is a fundamental duty of the State arising from Articles 50 and 89 of the Political Constitution and other international instruments. Initially, such safeguarding was confined to a concept of heritage embodied in some item of property. In judgment No. 1997-4350 at 14:54 hours on 24 de julio de 1997, the Chamber stated as follows:

“The notion of ‘estate’ (‘patrimonio’) certainly (sic) encompasses any property having monetary value. As stated in the Civil Code, an estate is the totality of a person’s property and rights; it also means that all property constituting a person’s estate is liable for payment of that person’s debts. Archaeological or cultural objects obviously also have an appreciable monetary value, whether because of the material from which they are made, their fine craftsmanship or beauty, or the historical testimony they embody, whether they are made of clay, stone, or metal. Some of these objects may have little physical value or limited significance (sic) as works of art, but they are nevertheless valuable because of their origin and as objects of study for investigating the culture of peoples from other eras, their beliefs and customs, or the nature of the environment in which they lived, according to the traces or representations found therein.

Yet these objects, both formerly and now, constitute a common heritage bequeathed by past generations to present ones, which in turn are responsible for passing it on to future generations as evidence of knowledge concerning the human events that identify or characterize our past. For all these reasons, archaeological objects originating from the Indigenous peoples who inhabited the continent during the pre-Columbian (sic) era, before or contemporaneously with the establishment of Hispanic culture, are valuable, and it is because of that value that many people seek and acquire such pieces.” However, even then, another important element requiring protection was recognized: the knowledge and techniques used to construct or produce that tangible heritage (patrimonio material):

“For that very reason, any individual interest that a person may have in the possession or ownership of those objects does not take precedence over the public interest, both because of their historical value and because the culture of peoples includes the study of what was done by the human groups that inhabited the same territory. That study is facilitated by enabling the greatest possible number of people to access those sources of knowledge, and nothing is more consistent with that public interest than for archaeological objects to remain within the national territory, in the custody of museums and under the ownership of the State or its institutions. It must therefore be emphasized that the most important consideration is not the material value of those objects, but rather their historical, scientific, and cultural value.” (judgment No. 1997-4350) Thus, in emphasizing the historical importance of such representations, reference was made, for example, to the testimonies forming part of that cultural legacy as a component of society’s cultural identity:

“Archaeology and History are two closely linked sciences, one of whose objectives is to clarify and reconstruct past events. Historical reconstruction is based fundamentally on the interpretation of written documents, whereas Archaeology bases its studies on the data it obtains from the material objects left by human activity in societies that have disappeared, through the relationships among those objects, the manner in which they were found, and their connection with the environment. Every preserved object, every vestige of human life and activity in past societies, constitutes evidence that makes possible complete or partial knowledge, as the case may be, of that evidence and, consequently, of ways of life that no longer exist and are unknown today, but whose understanding is of singular importance because they form part of the cultural identity of the society in which one lives; provided, of course, that they constitute important evidence for reconstructing and understanding past events.

The National Archaeological Heritage (Patrimonio Arqueológico Nacional) consists essentially of immovable and movable property (inmuebles y muebles) produced by Indigenous cultures predating or contemporaneous with the establishment of pre-Hispanic culture in the national territory, as well as human remains, flora, and fauna associated with those cultures. Hence the interest in protecting and preserving such finds.” (sentencias No. 1995-2706 y 1996- 0729).

The Chamber emphasized that the interest in safeguarding this heritage arose from a majority will directed toward securing the values sought; that is, from the majority of coinciding individual interests. It was described as an interest because it is directed toward attaining a value, benefit, or utility resulting from that upon which the majority consensus rests. Moreover, it has the connotation of a public interest (interés público), since it is attributed to the entire community as a result of that coinciding majority, because it is of or belongs to the people, to a community generally. Thus, it is not exclusive or peculiar to a few persons; rather, such a number of persons belonging to a particular community participate or coincide in it that they may be identified as representative of the entire group, including those who, individually, may or may not share it. From that time onward, heritage was regarded as comprising values of a historical and cultural nature that convey a message and help identify (sic) a particular historical moment, as real and tangible evidence of the evolution and transformation experienced by society and its natural environment over time, constituting in the past, today, and for the future a common heritage as an expression of the majority of coinciding individual interests (sic), that is, of a public interest.

Nevertheless, its conception remained tied to a material concept. Traditionally, the following were regarded as “cultural heritage” (patrimonio cultural): monuments, architectural works, monumental sculptures or paintings; inscriptions, caves, and groups of elements of an archaeological nature having outstanding universal value from the standpoint of history, art, or science, as well as sites created by nature. This traditional conception also derived from the Convention Concerning the Protection of the World Cultural and Natural Heritage, which defined it as follows:

“Article 1 For the purposes of this Convention, the following shall be considered “cultural heritage”:

- monuments: architectural works, works of monumental sculpture or painting, elements or structures of an archaeological nature, inscriptions, caves, and groups of elements having outstanding universal value from the standpoint of history, art, or science; - groups of buildings: groups of separate or connected buildings whose architecture, unity, and integration into the landscape give them outstanding universal value from the standpoint of history, art, or science; - sites: works of humankind or the combined works of humankind and nature, as well as areas, including archaeological sites, having outstanding universal value from the historical, aesthetic, ethnological, or anthropological standpoint.” Today, the concept of cultural heritage has been expanded by the Convention for the Safeguarding of the Intangible Cultural Heritage in the year 2003:

“Article 2: Definitions For the purposes of this Convention, 1. “Intangible cultural heritage” (patrimonio cultural inmaterial) means the practices, representations, expressions, knowledge, and skills—together with the instruments, objects, artifacts, and cultural spaces inherent in them—that communities, groups, and, in some cases, individuals recognize as an integral part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature, and their history, providing them with a sense of identity and continuity and thereby helping to promote respect for cultural diversity and human creativity. For the purposes of this Convention, consideration shall be given solely to intangible cultural heritage that is compatible with existing international human-rights instruments and with the imperatives of mutual respect among communities, groups, and individuals and of sustainable development.

2. The “intangible cultural heritage,” as defined in paragraph 1 above, is manifested particularly in the following domains:

• a)oral traditions and expressions, including language as a vehicle of intangible cultural heritage; b) performing arts; c) social practices, rituals, and festive events; d) knowledge and practices concerning nature and the universe; e) traditional craftsmanship.” This Convention was approved in our country through Ley No. 8560 del 16 de noviembre de 2006 and published in the Diario La Gaceta No. 237 del 11 de diciembre de 2006. The introduction of the concept of intangible cultural heritage opened new areas of legal protection (tutela) safeguarded by our Constitución Política in numeral 89, in relation to the provisions of artículo 7. Hence the importance of safeguarding this heritage against theft, looting, transport, trafficking, and/or illicit commercialization, from which certain countries, including Costa Rica and Ecuador, are suffering. In fact, our country has already approved another agreement of a similar nature with Perú, entitled “Convenio sobre protección y restitución de bienes culturales entre la República del Perú y la República de Costa Rica,” which was analyzed by this Tribunal in sentencia No. 2015-7175 de las 14:30 horas del 19 de mayo de 2015, as indicated below:

“IV.- Regarding the bill submitted for consultation. According to the statement of reasons in the legislative expediente under review, the purpose of this bill is not only to strengthen the existing cultural ties with the Contracting Parties, but also to address the problems that arise in both countries (sic) concerning the theft and illicit export of objects belonging to the cultural heritage. This initiative is inspired by the multilateral legal principles adopted in this regard by both States in the Convención de la UNESCO de 1970, sobre las medidas a Adoptarse para Prohibir e Impedir la Importación, Exportación y Transferencias Ilícitas de Bienes Culturales, the Convención de la UNESCO sobre la Protección del Patrimonio Mundial, Cultural y Natural de 1972, and the Convención de San Salvador sobre Defensa del Patrimonio Arqueológico, Histórico y Artístico de las Naciones Americanas de 1976.

By virtue of the foregoing, the Agreement establishes rules prohibiting the entry into their respective territories of cultural property (bienes culturales) originating from the other Party that has been unlawfully appropriated or exported (artículo 1). To that end, numeral 2 of the Agreement defines what both States are to understand as cultural property. It also provides for the exchange of information to issue alerts and identify such property when there is reason to suspect its unlawful removal (artículo 4); authorizes measures permitting the recovery of such property (artículo 3), for purposes of securing its protection and preservation; and, finally, facilitates its return by exempting it from customs duties and other applicable taxes. These objectives are consistent with the international commitments previously undertaken by our country and with the provisions of numeral 89 of the Constitución Política, concerning which this Tribunal has ruled as follows:

“SECOND: ON ARCHAEOLOGICAL HERITAGE (PATRIMONIO ARQUEOLÓGICO) OR CULTURAL HERITAGE (PATRIMONIO CULTURAL). Cultural property (bienes culturales) is the product and testimony of the different traditions and spiritual achievements of the past and constitutes a fundamental element of the identity of peoples; therefore, its conservation is indispensable and is a fundamental duty of the State. This means that historical and artistic heritage differs from assets of an economic nature, because it does not involve means of production, but rather archaeological heritage, whose legal regime follows a different set of ideas and purposes and a different category of values that, accordingly, cannot be examined under an economic-policy standard, since no doctrine of that kind applies to it. The notion of ‘estate’ (patrimonio) cer¬tainly (sic) encompasses any property having monetary value; as stated in the Civil Code, an estate is the entire body of a person’s property and rights, and all property constituting a person’s estate is also liable for payment of that person’s debts.

It is obvious that archaeological or cultural property also has an appreciable monetary value, whether because of the material from which it is made, its fine craftsmanship or beauty, or the historical testimony it provides, whether made of clay, stone, or metal. Some of these objects may have little physical value or little signifi¬cance (sic) as works of art, but even so they are valuable because of their origin and as subjects of study for researching the culture of peoples from other eras, their beliefs and customs, or the nature of the environment in which they lived, based on the traces or representations that may be found there (sic). But such property, both in the past and now, constitutes a common herit-age (sic) bequeathed by past generations to the present ones, which in turn are responsible for passing it on to future generations as evidence of knowledge of the human events that identify or characterize our past.

For all these reasons, archaeological objects originating from the Indigenous peoples who inhabited the continent in the pre-Columbian (sic) era, before or contemporaneous with the establish¬ment (sic) of Hispanic culture, are valuable, and it is because of that value that many people seek out and acquire such pieces. For that same reason, any individual interest a person may have in possessing or owning such objects does not take precedence over the public interest, both because of their historical value and because the study of the human groups that inhabited the same territory forms part of the culture of peoples. Such study is facilitated by enabling the greatest possible number of people to access those sources of knowledge, and nothing is more consistent with that public interest than for archaeological property to remain within the national territory, in the custody of museums and under the ownership (sic) of the State or its institutions.

It should therefore be empha¬sized (sic) that the most important consideration is not the material value of the aforementioned objects, but their historical, scientific, and cultural value. That interest is nothing more than a majority preference directed toward attaining the values sought; that is, the majority of coinciding (sic) individual interests. It is an interest because it is directed toward obtaining a value, benefit, or utility arising from that upon which such majority agreement rests. It is public because it is attributed to the entire community as the result of that coinciding majority, because it belongs (sic) to the people, to the community at large. Thus, it is a public interest because it is not exclusive or peculiar to a few persons, but rather because such a number of persons comprising a given community participate or concur in it that it may be identified as belonging to the entire group, including those who, individually, may or may not share it.

In other words, historical and cultural values, as bearers of a message, help identi¬fy (sic) a particular historical moment and constitute real and tangible testimony of the evolution and transformation experienced by society and its natural environment over time. In the past, today, and for the future, these constitute common heritage as an expression of the majority of coinciding (sic) individual interests; that is, of a public interest.” (Judgment No. 1997-4350) Consequently, far from constituting (sic) an infringement of the Law of the Constitution, the approval of this Convention strengthens our constitutional guarantee protecting cultural heritage and promotes the corresponding international cooperation between both States Parties for that purpose…

V.In conclusion, and under the terms stated, the Chamber finds no substantive or procedural objections of a constitutional nature to the bill processed under legislative file 18.138.”

That precedent concerns positive legal provisions very similar to the convention under review.” At the statutory level, law no. 7555 of October 4, 1995, ‘Patrimonio Histórico‑Arquitectónico de Costa Rica,’ provides:

“ARTICLE 2.- Historical-architectural heritage (patrimonio histórico-arquitectónico). Historical-architectural heritage of the country includes any publicly or privately owned immovable property (inmueble) of cultural or historical significance that has been so declared by the Ministerio de Cultura, Juventud y Deportes in accordance with this law.

The research, conservation, restoration, rehabilitation, and maintenance of historical-architectural heritage are hereby declared to be in the public interest.

ARTICLE 3.- Advisory services. The State has a duty to conserve the country’s historical-architectural heritage. The Ministerio de Cultura, Juventud y Deportes is the highest authority in this field and shall provide the necessary advice to the owners, possessors, or holders of rights in rem (derechos reales) over the property comprising that heritage, so that the purposes of this law may be fulfilled (…)

ARTICLE 5.- National Historical-Architectural Heritage Commission. The Comisión nacional de patrimonio histórico-arquitectónico is hereby created to advise the Ministry on compliance with this law. It shall be composed as follows:

• a)The Ministro de Cultura, Juventud y Deportes or the Minister’s representative, who shall chair it.
• b)The highest-ranking official at the Centro de Investigación y Conservación de Patrimonio Cultural.
• c)One representative of the Colegio de Arquitectos, appointed by its Junta Directiva.
• d)The Presidente de la Academia de Geografía e Historia.
• e)The Presidente de la Asociación costarricense del Consejo Internacional de Monumentos y Sitios.
• f)One representative of the Procuraduría General de la República.
• g)One representative of the Defensoría de los Habitantes, who may speak but shall not vote.

The duty of the last two shall be to safeguard the interests of private parties affected by the application of this law. The Commission members referred to in subsections a), b), d), and e) shall serve for as long as they hold the office by virtue of which they became members; those referred to in subsections c), f), and g) shall be appointed for four years. In the event of resignation or death, the replacement shall be appointed for a full term (…)

ARTICLE 8.- Executive Decree. The Executive Decree incorporating a particular property into the historical-architectural heritage shall include the following:

• a)The immovable property’s registration information in the Registro de la Propiedad and a clear and precise description of the buildings located on it, particularly those that gave rise to the declaration.
• b)A detailed and reasoned analysis of the historical or architectural grounds supporting the declaration.
• c)A recommendation to initiate proceedings for the expropriation of immovable property in accordance with the applicable law when the encumbrance (afectación) of other adjoining or neighboring immovable properties is required for the physical protection or better cultural or visual enjoyment of the property (…)” (boldface added).

Likewise, section 35 of the Ley Orgánica del Ambiente provides: “The creation, conservation, administration, development, and oversight of protected areas (áreas protegidas) shall have the following objectives: (…) f) To protect the natural and scenic surroundings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.” This means that the management of cultural resources (manejo de los recursos culturales) allows human intervention for the maintenance, safekeeping, and preservation of such property and the property located in its surroundings, as well as actions undertaken to promote its recovery and preservation. Sections 71 and 72 thereof, in turn, provide:

“Article 71.- Visual pollution (contaminación visual). Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum permissible limits established by existing or future technical standards shall be deemed visual pollution.

The Executive Branch shall prescribe appropriate measures and promote their implementation through agencies, public entities, and municipalities in order to prevent this type of pollution.

Article 72.- Landscape conservation (conservación del paisaje). The competent authority shall promote the participation of the public and private sectors in landscape conservation. When carrying out a project requires affecting the landscape, the resulting landscape shall be of at least the same quality as the previous one.” Consequently, with respect to cultural heritage, the objectives pursued include not only conservation, preservation, and development, but also, as stated in ruling no. 2010013099 at 14:56 on August 4, 2010, “the principle of sustainability in the use and development of artistic, archaeological, and cultural heritage property, in order to enrich its surroundings by improving their scenic beauty and to provide access and security for property and persons, as recommended by the technical and scientific standards in the respective fields.” Thus, consistent with constitutional case law, the protection of cultural heritage is imposed as a constitutional obligation under Articles 50 and 89 of the Political Constitution (Carta Magna), without prejudice to the national and international legal framework governing the matter.

The preservation of cultural heritage that is also located within a protected wildlife area (área silvestre protegida) means that, before any legislative decision affecting either the heritage or its surroundings is adopted, technical studies supporting its preservation must be available. This is essential in order to study the interaction among cultural heritage, the environment, and human beings and to determine whether an appropriate balance among those elements can be achieved.

III.On the alleged unconstitutionality of law no. 9892 of August 24, 2020, for changing, without prior scientific studies, the management category (categoría de manejo) of a territorial portion of the ‘Isla San Lucas’ protected wildlife area.

Before issuing the ruling required by law, it bears emphasizing that, through law no. 5469 of April 25, 1974, Isla San Lucas was transferred to the Municipalidad de Puntarenas for the purpose of using it as a tourism center. Subsequently, law no. 6043 of March 2, 1977, entitled ‘Ley sobre la Zona Marítimo Terrestre,’ provided that the aforementioned island “shall retain its current legal status under the administration of the Municipalidad de Puntarenas.” Furthermore, executive decree no. 24520 of July 27, 1995, declared the buildings of the Presidio de San Lucas to be of historical and architectural interest. For its part, executive decree no. 29277-MINAE of January 11, 2001, created the Refugio Nacional de Vida Silvestre Isla San Lucas.

Then, through executive decree No. 30714-C of 26 de setiembre de 2002, the buildings on that island were incorporated into Costa Rica’s historical-architectural heritage, based on the following considerations: “1º—That Isla de San Lucas contains evidence of pre-Hispanic occupation from the Sapoa-Ometepe period (800-1500 d. C), as well as buildings attesting to its use as a penal facility during the decade of the 1930s, which confers upon it the designation of Sitio Histórico Isla de San Lucas. 2º—That the archaeological sites located on the Island reflect knowledge of navigation and the extraction and use of resources associated with marine and coastal environments. 3º—That few archaeological sites exist on the islands of the Golfo de Nicoya and, because they are nonrenewable and finite, they must be protected. 4º—That the former penal facility is an architectural complex characterized by a physical structure recognizable as representative of the historical and social reality of the years 1930 1940. 5º—That the architectural complex on the Island employed reinforced-concrete techniques and Rationalist influence within a cultural environment markedly influenced by historicism (sic). 6º—That it is the State’s duty to safeguard the country’s Cultural Heritage.” Now, Law No. 9892, challenged in the sub iudice proceeding, provides:

“ARTICLE 1—Creation. The Parque Nacional Isla San Lucas is hereby created and, in addition to its status as a protected wildlife area (área silvestre protegida), shall constitute historical-architectural heritage and a sustainable tourism-use zone in the specific areas determined in this Law (…)”.

In view of the foregoing, it bears reiterating what was stated ut supra regarding protected wildlife areas, which constitute delimited geographical spaces composed of land, wetlands, and portions of the sea that have special significance because of their ecosystems, the presence of threatened species, their importance for reproduction and other needs, and their historical and cultural significance. Such protected wildlife areas are dedicated to the conservation and protection of biodiversity, soil, water resources, cultural resources, and ecosystem services in general.

In addition, it should be recalled that the protected-areas system consists of various management categories (categorías de manejo o gestión). These categories certainly pursue common purposes, such as those provided for in section 35 of the Ley Orgánica del Ambiente; however, they also possess distinctive characteristics of importance. On this subject, in the aforementioned opinion No. C-016-2002 of 15 de enero de 2002, the PGR explained: “(…) even (sic) though our legislation currently in force contains no technical definition of a protective zone (zona protectora), the mere classification of management categories made by Article 32 of Law No. 7554 necessarily suggests that differences do exist among them, since otherwise it would have sufficed to establish a single regime for protected wildlife areas. And it is logical that this should be so, because each wildlife area has its own biological, soil-related, hydrological, and other characteristics, which make it deserving of a particular treatment regime defined by the management category assigned to it” (emphasis supplied).

Thus, it is evident that, alongside the special protection enjoyed by protected wildlife areas “because they have special significance due to their ecosystems, the existence of threatened species, their importance for reproduction and other needs, and their historical and cultural significance” (Article 58 of the Ley de Biodiversidad), each of the different management categories has its own distinctive qualities. This inexorably requires scientific studies to support the decision as to which type of management category is most appropriate for each area, as the aforementioned provision stipulates: “During the process of satisfying the requirements for establishing state-owned protected wildlife areas, the respective technical reports shall include the pertinent recommendations and justifications for determining the most appropriate management category to which the proposed area should be subject” (boldface added).

In that regard, the UICN emphatically stated to this Court that: “T (sic)he assignment of a management category to a protected wildlife area must be the product of an analysis that considers the objectives for which the area was created; the area’s natural, cultural, and other values; the current condition of those values; the uses that might be contemplated; among other matters. Such an assessment must be conducted jointly with stakeholders, authorities, and local communities.” In the sub examine matter, under Law No. 9892, a portion of Isla San Lucas changed from a ‘national wildlife refuge (refugio nacional de vida silvestre)’—as defined in executive decree No. 29277-MINAE of 11 de enero de 2001—to a ‘national park (parque nacional).’ It should be noted that, pursuant to section 32 of the Ley Orgánica del Ambiente, both ‘national wildlife refuge’ and ‘national park’ represent different management categories within a more general type of geographical zone known as a ‘protected wildlife area.’ Accordingly, precisely because they are distinct management categories, their respective lands require differentiated regulatory treatment.

That is, a protected wildlife area is subdivided into several management categories, each of which encompasses specific geographical zones whose particular qualities precisely justify and require the various measures necessary and tailored to those characteristics in order to safeguard the environment effectively and efficiently. Such categorization and, of course, any subsequent alteration thereof are neither arbitrary nor the product of whim; rather, they are based on duly supported prior scientific studies. This is consistent with sections 38 of the Ley Orgánica del Ambiente, 58 and 59 of the Ley de Biodiversidad, 71 and 72 of the regulations implementing the latter body of law, 2 of the ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América,’ and 10 and 14 of the ‘Convenio sobre Diversidad Biológica y sus Anexos,’ as well as with the principles of progressivity and non-regression in environmental matters, the precautionary, preventive, and objective environmental-protection principles, and the logical-legal principle of non-contradiction.

Consistent with the foregoing, Law No. 7317 of 30 de octubre de 1992, entitled ‘Ley de Conservación de la Vida Silvestre,’ regulates national wildlife refuges as follows:

“Article 82.—National wildlife refuges are those that the Executive Branch declares or has declared as such for the conservation, management, and protection of wildlife, particularly wildlife at risk of extinction. For classification purposes, there are three classes of national wildlife refuges:

• a)State-owned refuges.
• b)Mixed-ownership refuges.
• c)Privately owned refuges.

The natural resources located within national wildlife refuges shall fall under the exclusive jurisdiction and management of the Sistema Nacional de Áreas de Conservación () of the Ministerio de Ambiente y Energía (*), as provided in this Law and its Regulations (…)

Natural or legal persons wishing to conduct development activities or projects or exploit natural resources located within type b and c refuges shall require authorization from the Sistema Nacional de Áreas de Conservación (*). Such authorization shall be granted in accordance with conservation criteria and strict ‘sustainability’ in protecting natural resources, and shall be assessed through the submission of an impact assessment (evaluación de impacto) of the proposed action, following the applicable technical-scientific methodology. This assessment shall be paid for by the interested party and prepared by professionals qualified in the field of natural resources (…)

In state-owned and mixed-ownership refuges, only activities defined in the management plan (plan de manejo) prepared for the protected area may be conducted, subject to prior submission of the corresponding environmental impact assessments (evaluaciones de impacto ambiental) (…)

Article 83.—The extraction of wildlife (*), whether continental or insular, from national wildlife refuges is prohibited, except for management and extraction for nurseries or wildlife-breeding facilities (zoocriaderos), following completion of the corresponding scientific-technical studies.

The Sistema Nacional de Áreas de Conservación (*) shall have the powers and duties established by Law No. 6043 with respect to National Wildlife Refuges that include areas within the maritime-terrestrial zone (zona marítimo terrestre) (…)” (emphasis added).

In turn, the Regulations to the Ley de Biodiversidad define this protected-wildlife-area management category as follows:

“e) National Wildlife Refuges: Geographical areas containing terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination thereof. Their principal purposes shall be the conservation, research, enhancement, and management of wild flora and fauna, particularly those at risk of extinction. For classification purposes, there are three classes of national wildlife refuges:

e.1) State-owned refuges. These are refuges in which the areas declared as such belong entirely to the State and form part of the public domain. Their administration shall correspond exclusively to SINAC. Their principal objectives are the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. Because they form part of the State’s natural heritage (patrimonio natural del Estado), only research, training, and ecotourism activities may be conducted.

e.2) Privately owned refuges. These are refuges in which the areas declared as such belong entirely to private parties. Their administration shall correspond to the owners of the properties and shall be supervised by SINAC. Their principal objectives are the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. On the lands of privately owned refuges, only (sic) productive activities consistent with the provisions of the Reglamento de la Ley de Conservación de la Vida Silvestre, Decreto Ejecutivo Nº 32633-MINAE, of 10 de marzo del 2005, published in La Gaceta Nº 180 of 20 de setiembre del 2005, may be conducted.

e.3) Mixed-ownership refuges. These are refuges in which the areas declared as such belong partly to the State and partly to private parties. Their principal objectives are the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. Their administration shall be shared between the private owners and SINAC, such that on State-owned lands only (sic) the activities previously specified for state-owned refuges, as indicated in subsection i), may be conducted, whereas on privately owned lands the activities specified for privately owned refuges, as indicated in subsection ii), may be conducted, subject to the respective criteria and requirements.

Regarding the dimensions and characteristics permitted for the different types of activities and projects to be carried out within privately owned refuges and in the private portion of mixed-ownership refuges, refer to the Reglamento de la Ley de Conservación de la Vida Silvestre.” For its part, in judgment no. 1999002988 at 11:57 hours on 23 de abril de 1999, this Constitutional Court stated the following regarding national wildlife refuges (refugios nacionales de vida silvestre):

“The primary purpose of these sites is to protect endangered species of flora and fauna that possess, among other values, great scientific value, hence the interest in preserving them. Their conservation is intended to guarantee the perpetuity of wildlife species, their populations and habitats, and to provide opportunities for scientific, educational, and recreational activities, provided that they do not undermine the objectives of each refuge. Within National Wildlife Refuges, the biota may be highly varied depending on the diversity of natural associations existing within the refuge and the variety of local geographical conditions, which requires consideration of the differences arising from diverse geological, soil-related, topographical, animal, and human activity conditions; hence the need for legal protection of these areas and the other constituent elements of forest agricultural property (propiedad agraria forestal)” (emphasis added).

In addition to the foregoing, the Sistema Nacional de Áreas de Conservación has clarified that a national wildlife refuge is equivalent to IUCN conservation category IV, namely, a habitat/species management area (área de manejo de hábitat/especies), whose primary purpose is the protection of specific habitats or species and which therefore seeks their maintenance, conservation, and restoration. This type of management category (categoría de manejo) is generally used in geographical areas that have undergone significant modifications and consequently require protection, which may be provided with or without human intervention. It has also been noted that human uses, such as scientific research, may occur within the aforementioned category; however, this cannot constitute its primary purpose, because the measures adopted must be directed primarily toward protecting habitats and species.

Moreover, under Article 1 of the ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América,’ a national park must be understood as: “Regions established for the protection and conservation of natural scenic beauty and flora and fauna of national importance, which the public may best enjoy when placed under official supervision (…)”. It further provides that:

“ARTICLE 3 The Contracting Governments agree that the boundaries of national parks shall not be altered, nor shall any part thereof be transferred, except by action of the competent legislative authority. The resources existing therein shall not be exploited for commercial purposes.

The Contracting Governments agree to prohibit the hunting, killing, and capture of fauna specimens and the destruction and collection of flora specimens in national parks, except when carried out by park authorities, or by order of or under their supervision, or for duly authorized scientific research.

The Contracting Governments further agree to provide national parks with facilities for public recreation and education, in accordance with the purposes pursued by this Convention (…)” (emphasis added).

Furthermore, as stated above, the Reglamento a la Ley de Biodiversidad defines national parks as “Geographical areas—terrestrial, marine, marine-coastal, freshwater, or a combination thereof (sic)—of national importance, established for the protection and conservation of natural beauty and biodiversity, as well as for public enjoyment. These areas contain one or more ecosystems in which the species, habitats, and geomorphological sites are of special scientific, cultural, educational, and recreational interest, or contain a natural landscape of great beauty (…)”.

For its part, as stated in the preceding recital (considerando), the IUCN places national parks within management category II and describes them as large natural or near-natural areas established to protect large-scale ecological processes, together with the complement of species and ecosystems characteristic of the area, which also provide a foundation for environmentally and culturally compatible spiritual, scientific, educational, recreational, and visitor opportunities. The primary purpose of this type of management category is to protect natural biodiversity, ecological structure, and environmental processes, as well as to promote education and recreational use.

Additionally, the IUCN has identified distinctions between national parks—category II—and habitat/species management areas—category IV—known in the country as national wildlife refuges, stating that: “The management objective of category IV protected areas is the conservation of specific species or habitats, and consequently they devote less attention to other elements of the ecosystem, whereas the objective of category II protected areas is to conserve complete functioning ecosystems. Categories (sic) II and IV may be very similar in certain circumstances, and the distinction is based partly on the question of objectives—for example, whether the objective is to protect the entire ecosystem to the greatest extent possible (category II), or whether it focuses on protecting a few key species or habitats (category IV)” (Directrices para la aplicación de las categorías de gestión de áreas protegidas, IUCN, 2018; boldface added).

Moreover, in relation to the challenged body of regulations, the PGR issued legal opinion no. OJ-082-2020:

“Pursuant to Article 18 of the Ley Forestal, Article 11 of its Regulations (Decreto Ejecutivo no. 25721 of 17 de octubre de 1996) establishes that, in protected wildlife areas (áreas silvestres protegidas), except for national parks and biological reserves, ecotourism activities may be authorized solely in the areas designated for that purpose by SINAC, and that SINAC may authorize permitted activities by granting use permits (permisos de uso) and collecting the corresponding fee (canon).

Under that same provision, ecotourism activities may include trails or rustic roads, camping areas, overlooks, canopy tours, suspension bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, and fishing; research activities may include overlooks for observing wildlife species or for monitoring and protection, trails, the installation of camera traps, and the collection of biodiversity samples; and training activities may include demonstration tours, ecological classrooms, and environmental education programs, as well as other related and duly authorized activities that are compatible with the environment.

For its part, consistent with those limitations, Article 82 of the Ley de Conservación de la Vida Silvestre establishes that natural-resource development and exploitation projects may not be carried out in state-owned wildlife refuges; this is reiterated in Article 70 of the Reglamento a la Ley de Biodiversidad (Decreto no. 34433 of 11 de marzo de 2008), which provides that only training, research, and ecotourism activities may be carried out in those refuges.

Regarding the activities that may be carried out in national parks and biological reserves, Article 58 of the Ley de Biodiversidad establishes that the applicable prohibitions are those set forth in the Ley de Creación del Servicio de Parques Nacionales (no. 6084 of 24 de agosto de 1977). In Articles 8, 10, and 12, that law provides that any type of commercial, agricultural, or industrial activity is prohibited in those areas; that fishing is limited to artisanal and sport fishing where it is shown not to cause ecological alterations; and that no concessions of any kind may be granted for the exploitation of products, nor may permission be granted to establish facilities other than those of the Servicio de Parques Nacionales.

In this regard, the provisions of Article 3 of the Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América (approved by Ley no. 3763 of 19 de octubre de 1966) are relevant insofar as they provide that the resources existing in national parks may not be exploited for commercial purposes.

Based on these latter provisions, National Parks and Biological Reserves have been deemed protected wildlife areas subject to absolute conservation. (Sala Constitucional, ruling no. 16975-2008 at 14 hours 53 minutes on 12 de noviembre de 2008. See also our opinions nos. C-228-1998 of 3 de noviembre de 1998, C-297-2004 of 19 de octubre de 2004, OJ-236-2003 17 de noviembre de 2003, OJ-093-2004 of 19 de julio de 2004, OJ-069-2008 of 12 de agosto de 2008, and OJ-027-2018 of 28 de febrero de 2018).

Furthermore, pursuant to Article 39 of the Ley de Biodiversidad, within protected wildlife areas, the Consejo Nacional de Áreas de Conservación is empowered to approve contracts or concessions for nonessential services and activities, such as parking, restroom facilities, management of physical facilities, food services, stores, construction and management of trails, visitor management, and others defined by the Consejo Regional del Área de Conservación concerned. Those concessions may not include the exercise of responsibilities belonging to MINAE, such as defining and monitoring strategies, plans, and budgets for the Áreas de Conservación; nor may they include authorization for private buildings.

In principle, all protected wildlife areas must be managed and used in accordance with the foregoing provisions. Although those regulations and restrictions on use are established in statutory and regulatory provisions, it must be borne in mind that ‘upon their designation, the intent is to give these geographical areas the conservation-oriented and protective vocation necessary to fulfill their function.’ (Sala Constitucional, rulings nos. 21258-2010 at 14 hours on 22 de diciembre de 2010, 16938-2011 at 14 hours 37 minutes on 7 de diciembre de 2011, and 2752-2014 at 9 hours 15 minutes on 28 de febrero de 2014. Emphasis not in the original). And that, by virtue thereof, protected wildlife areas are framed ‘within a planning context whose purpose is to preserve the natural resource.’ (Sala Constitucional, ruling no. 16938-2011, cited above).

Consequently, amending the provisions concerning a protected wildlife area to establish conditions of use and regulations governing its management that differ from the regime generally applicable to such protected areas could entail a reduction in the area’s level of protection and, consequently, a violation of constitutional principles.

In that regard, on other occasions, we have stated that:

“From that article [Article 18 of the Ley Forestal], it follows that, at present, the uses legally permitted within the State natural heritage (patrimonio natural del Estado) are limited to research, training, and ecotourism activities, which must also be approved by the Ministerio de Ambiente, Energía y Telecomunicaciones. Those restrictions do not have constitutional rank, and it is therefore clear that they could be modified by a provision of the same nature, as would occur with the bill intended for enactment, since there is no principle of ‘immutability of the legal system.’ Nevertheless, it must be reiterated that, when reducing protection guarantees, as would be the case when authorizing other activities that are not currently permitted, technical criteria supporting such a measure are essential; otherwise, the decision would become arbitrary and would violate Constitutional Law, specifically the right to enjoy a healthy and ecologically balanced environment. Along the same lines, any activity authorized within the refuge cannot be incompatible with the environmental protection that its creation is intended to guarantee, since doing so would undermine its very purpose.

Accordingly, to expand the range of activities permitted in the Refugio de Vida Silvestre Ostional, not only (sic) must there be technical studies supporting such an expansion, but the activities to be carried out must also be compatible with the environmental suitability of the land and must not endanger turtle nesting at the site. Only (sic) by complying with these requirements could it be ensured that the collective interest and the social problem intended to be addressed are not protected at the expense of the environment as a superior legal interest.” (Legal opinion no. OJ-014-2010 of 26 de marzo de 2010. Similarly, see opinions nos. OJ-033-2011 of 13 de junio de 2011, OJ-156-2014 of 17 de noviembre de 2014, OJ-084-2015 of 6 de agosto de 2015, OJ-088-2018 of 18 de setiembre de 2018) (…)

(…) if the intention is to broaden that enabling regulatory framework, the legislature must ensure that the activities or developments to be authorized are consistent with the Constitutional Chamber’s ruling—that is, that they will be compatible with environmental protection—and that they are in keeping with the site’s carrying capacity, which, in any event, as that judicial body held, must be ensured sustainably in accordance with science and technology.

Thus, although the bill states that commercial, transportation, sports, artistic, or cultural activities would be authorized to encourage tourism and visitation to the island, and that permits would be granted in the tourism zone for works and services of every kind, the fact remains that authorization of those activities must depend on what is technically determined to be viable in the corresponding protected wilderness area (área silvestre protegida) planning instrument or in the applicable environmental impact assessments (evaluaciones de impacto ambiental). Otherwise, the general authorization set forth in the legislative initiative would lack the scientific and technical basis necessary to support a finding that the island’s natural and historical-architectural heritage would not be adversely affected, as expressly required by the Constitutional Chamber.

Another matter that must be assessed is the advisability of converting the current wildlife refuge (refugio de vida silvestre) into a National Park, as proposed by the bill, because, as already noted, national parks, together with biological reserves, are regarded as areas of absolute conservation and, consequently, the activities that may be conducted within them are more limited.

Indeed, as noted, the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America provides that the resources existing within national parks may not be commercially exploited, and this could pose an obstacle to the activities planned for the island (…)

(…) the proposed boundaries of the protected wilderness area must be reviewed, because they do not appear to include the 210 hectares of marine area and islets that were added to the Refugio de Vida Silvestre by Decreto 34282 and that the Constitutional Chamber retained as part of the protected area in ruling no. 13099-2010.

The foregoing could entail, at a minimum, a serious conflict in the application of the governing provisions, because if the bill is enacted as currently drafted, it could be understood that Isla San Lucas and the surrounding marine area to a depth of six meters would constitute a national park, while the remaining area not included would retain its status as a wildlife refuge and would continue to be governed by the provisions of the Decree that created it.

Another possible interpretation, which would render the provision unconstitutional, would be that enactment of the law, by failing to include the specified area, entails a reduction of the protected wilderness area without the technical studies required for that purpose. (In this regard, see Constitutional Chamber rulings nos. See rulings nos. 1056-2009 at 14 hours 59 minutes on 28 de enero de 2009, 13367-2012 at 11 hours 33 minutes on 21 de setiembre de 2012, 12887-2014 at 14 hours 30 minutes on 8 de agosto de 2014, 673-2019 at 12 hours on 16 de enero de 2019, among others)” (emphasis added).

It is reiterated, however, that although both national wildlife refuges and national parks are management categories for protected wilderness areas, it is equally true that they possess distinctive and unique characteristics, since each pursues specific management objectives with its own conservation goals. Moreover, each category is distinguished by a particular degree of protection consistent with its specific biological, soil-related, hydrological, physiographic, ecological, climatic, and other factors, which in turn define the permissible level of human intervention.

In conclusion, the existence of different management categories for protected wilderness areas means that each category has different biological, soil-related, hydrological, physiographic, ecological, climatic, and other characteristics and, consequently, different conservation objectives, requiring regulations and administrative provisions specific to each category. Otherwise, the classification into different management categories established in section 32 of the Ley Orgánica del Ambiente would be superfluous, not only from an environmental standpoint but also from a logical and legal one. In other words, even though the protected wilderness area as a whole serves a series of objectives—see Article 35 eiusdem—it is equally true that each specific management category pursues different conservation purposes according to its own qualities, which entails specific forms of administration, management, planning, uses, and prohibitions.

It should be noted that environmental protection must not be undertaken in isolation, but rather within a system that takes into account the other constitutional interests involved. In this regard, it must be considered that Isla San Lucas also enjoys specific protection with respect to the cultural heritage located there, an issue already examined by this Court in the aforementioned judgment no. 2010013099 at 14:56 hours on 4 de agosto de 2010:

“VII.- On the protection of cultural heritage.- This Chamber has the function of safeguarding constitutional supremacy, the fundamental rights and freedoms contained in the Constitución Política, human rights, and those fundamental instruments applicable in the Republic. In accordance with the discussion in the preceding recital (considerando), the legal issues addressed by constitutional challenges are not exhausted by the foregoing declaration of unconstitutionality, because they also involve other fundamental rights that must be protected. During the judicial inspection of 4 de junio de 2010, this Constitutional Court, as well as the parties and supporting intervenors appearing in the proceedings, observed the visible lack of maintenance over the decades of the buildings located on Isla San Lucas, the need to take action to halt the advanced deterioration suffered by the infrastructure existing there (and by the wooden structures that once existed at the site), and the urgent need to prevent its imminent disappearance. There is also the historical evidence provided by archaeological sites belonging to cultures that lived on the island, which must be protected not only because of the historical function assigned to the island as a penitentiary. On this matter, the Chamber reiterates its ruling in judgment No. 2003-03656, which held that:

“C.- CONSTITUTIONAL PROTECTION OF CULTURAL HERITAGE. ARTICLES 50 AND 89 OF THE CONSTITUCIÓN POLÍTICA.

XVI. DEFINITION OF THE SCOPE OF APPLICATION AND LEGAL-CONSTITUTIONAL BASIS

The importance of protecting cultural heritage at the national, regional, and international levels is beyond dispute, precisely because of the significance that this heritage holds for the necessary preservation and strengthening of the identity of peoples (population and/or nation), whether in the historical, social, geographical, or cultural spheres. It is universally understood that comprehension of the past—a connection with one’s roots—entails comprehension of the present and establishes the possibilities for the future material and psychosocial development of individuals and human groups. This concerns the recognition of a value, understood as the incorporation of economic potential, or of value realized in pursuit of a transcendent purpose (spiritual, cultural, or artistic value). For this reason, the concept of historical-architectural heritage (patrimonio histórico-arquitectónico) has evolved, as have the criteria for its protection, so that such protection is no longer justified by a ‘romantic’ ideal, but rather by heritage’s role as a condition of peoples’ identity and as an integral part of their history and culture, based on considerations of socioeconomic development and urban-environmental or urban-ecological development, thus giving it a more human foundation.

Protection by States is therefore necessary to permit effective and efficient action based on a scientific framework consistent with reality, both in the field of territorial and architectural theories and in the legal field, insofar as it interacts with other disciplines and bodies of knowledge, such as History, Anthropology, Architecture, Restoration Theory, and Law, among others; such protection must also take into account the country’s own circumstances, such as its degree of underdevelopment and economic dependence. The protection of this heritage must therefore be actively integrated into the country’s social and economic resources so that it does not constitute a burden on the State or on the population (owners, possessors, or holders of any property right in assets subject to this special protection regime), and so that it becomes another resource capable of generating social well-being.

XVII.The protection of cultural heritage falls within Urban Planning Law (Derecho Urbanístico), which has recently come to be understood within the broader framework of Environmental Law (Derecho Ambiental), whose legal-constitutional basis is found in Articles 50 and 89 of the Constitución Política, insofar as they expressly provide:

‘The State shall seek the greatest welfare of all inhabitants of the country by organizing and encouraging production and the most appropriate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. Accordingly, every person has standing (legitimación) to report acts that infringe that right and to seek reparation for the harm caused.

The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding liabilities and penalties” (Article 50); and “Among the cultural purposes of the Republic are: to protect natural beauty, preserve and develop the Nation’s historical and artistic heritage, and support private initiative for scientific and artistic progress” (Article 89).

This latter provision sets guidelines for public authorities to promote environmental protection, understood comprehensively—that is, not in the traditional sense, which has been limited to the sphere of natural resources, commonly known as “the green environment,” insofar as it has been understood to encompass natural resources (forests, water, air, minerals, flora and fauna, etc.), but also with regard to the surroundings in which people live. These surroundings include not only nature’s scenic beauty, such as the landscape, but also everything relating to cities and urban and rural settlements—in other words, the concept of the urban environment. These may rightly be described as two complementary aspects of a single reality, like two sides of the same coin: the natural environment and the urban environment. The aim, therefore, is to achieve a more humane environment: one that is not only healthy and ecologically balanced, but also serves as a symbolic reference point and a source of national, regional, or local identity.

Thus, the fundamental right to a healthy and ecologically balanced environment—extensively developed in constitutional case law (jurisprudencia constitucional)—encompasses both its natural and its artificial components, the latter being understood as the human habitat, what has been built by human beings, namely, the urban environment, so that both remain free from all contamination, because of both the effects and repercussions it may have on the health of people and other living beings and the intrinsic value of the environment.” In light of the foregoing, the Chamber must analyze the specific case, since both rights—the right to the natural environment and the right to the urban environment—must be balanced when Cultural Heritage (Patrimonio Cultural) is involved, because these too are constitutional values that cannot legitimately be excluded from the rights of access and enjoyment held by all private individuals, nationals and foreigners alike, which is known as heritage enhancement (puesta en valor).

However, the Chamber maintains that the notion that the aspiration of human development can be achieved only in an urban environment must be dispelled. Faced with this situation, the Chamber would encounter a dilemma: although Decreto Ejecutivo 34282-TUR-MINAE-C contains provisions that clearly conflict with Article 50 of the Political Constitution (Constitución Política), as declared in this judgment, other provisions are indeed grounded in national and international legislation and cannot be eliminated because they are based specifically on rules of higher legal rank, in addition to being consistent with their status as a fundamental right (see Considerando XX of Judgment 2003-03656). In such circumstances, on the basis of the fundamental right to a healthy and ecologically balanced environment, the protection afforded to National and Cultural Heritage (Patrimonio Nacional y Cultural) may not be sacrificed.

VIII.Continued: Protection of National and Cultural Heritage. Applicable international legislation. The importance of this action lies precisely in determining the extent to which the protection and preservation of National and Cultural Heritage must be guaranteed and how this must be reconciled with the right to a healthy and ecologically balanced environment. For these purposes, the Chamber considers it necessary to transcribe the international legislation referring to cultural value and the protection it deserves from the various States of the world. To begin with, the countries of the Central American region established the following in the “Convention for the Conservation of Biodiversity and the Protection of Priority Wilderness Areas in Central America” (“Convenio para la conservación de biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central”):

“Article 19.- National strategies shall be developed to implement the plans for Protected Wilderness Area Systems (Sistemas de Áreas Silvestres Protegidas), thereby guaranteeing basic economic functions for local, regional, and global development and strengthening the institutional presence in the aforementioned areas; to that end, national and international funding shall be sought for their effective implementation.” “Article 22.- Environmentally compatible development practices shall be promoted through every possible means in the areas surrounding protected areas, not only to support the conservation of biological resources, but also to contribute to sustainable rural development.” “Article 28.- Support is given to actions intended to encourage ecotourism in the region as a mechanism through which the economic potential of Protected Areas (Áreas Protegidas) is recognized, part of their funding is guaranteed, and the quality of life of the populations adjacent to those regions is improved.

To that end, immigration and infrastructure facilities shall be implemented to promote ecotourism in border areas.” Article 37 of this Convention establishes that the interpretation of the Convention shall not affect the rights and obligations of the Central American States arising from pre-existing international conventions relating to the conservation of biological resources and protected areas. When the Treaty uses concepts such as “local, regional, and global development,” “sustainable rural development,” and “encouraging ecotourism,” it refers not only to the commitment to protect wilderness areas but also to human development. Sala Constitucional reiterates that these concepts may in no way be interpreted as a departure from the constitutional criteria that must be derived from the doctrine of Articles 50 and 89 of the Political Constitution, under which the only true development is development compatible with and founded on environmental sustainability.

This entails, of course, preventing legislation or other measures that States might adopt from resulting in regression in environmental safeguards (garantías ambientales) and other safeguards established by the Convention; it is nevertheless clear that the Convention permits the development of environmentally sustainable activities.

The Convention concerning the Protection of the World Cultural and Natural Heritage, approved by Ley No. 5980, provides that:

“Article 1 For the purposes of this Convention, the following shall be considered ‘cultural heritage’:

- monuments: architectural works, … elements or structures of an archaeological nature, … which are of outstanding universal value from the point of view of history, art, or science.

- groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity, or their place in the landscape, are of outstanding universal value from the point of view of history, art, or science.

- sites: works of human beings or the combined works of nature and human beings, and areas including archaeological sites, which are of outstanding universal value from the historical, aesthetic, ethnological, or anthropological point of view.” “Article 2 For the purposes of this Convention, the following shall be considered ‘natural heritage’:

- natural features …

- geological and physiographical formations and precisely delineated areas constituting the habitat of threatened animal and plant species, which are of outstanding universal value from the point of view of science or aesthetics, - natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation, or natural beauty,” “Article 4 Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, rehabilitation, and transmission to future generations of the cultural and natural heritage situated within its territory belongs primarily to that State. It shall endeavor to act to that end through its own efforts and to the fullest extent of its available resources and, where appropriate, with any international assistance and cooperation from which it may benefit, particularly in financial, artistic, scientific, and technical matters.” “Article 5 To ensure that effective and active measures are taken for the protection, conservation, and enhancement of the cultural and natural heritage situated within its territory, under conditions appropriate to each country, each State Party to this Convention shall endeavor, insofar as possible:

• a)to adopt a general policy aimed at giving the cultural and natural heritage a function in the life of the community and integrating the protection of that heritage into comprehensive planning programs; b) to establish within its territory, where such services do not exist, one or more services for the protection, conservation, and enhancement of the cultural and natural heritage, with appropriate staff and the means necessary to perform their duties; c) …
• d)To take the appropriate legal, scientific, technical, administrative, and financial measures necessary for the identification, protection, conservation, enhancement, and rehabilitation of that heritage; and e) …” “Article 6 While fully respecting the sovereignty of the States within whose territories the cultural and natural heritage referred to in Articles 1 and 2 is situated, and without prejudice to the real rights (derechos reales) provided for by national legislation concerning that heritage, the States Parties to this Convention recognize that such heritage constitutes world heritage for whose protection it is the duty of the international community as a whole to cooperate.

The States Parties consequently undertake, in accordance with the provisions of this Convention, to assist in the identification, protection, conservation, and enhancement of the cultural and natural heritage referred to in Article 11, paragraphs 2 and 4, if the State within whose territory it is situated so requests.

Each State Party to this Convention undertakes not to take any deliberate measures that might directly or indirectly damage the cultural and natural heritage referred to in Articles 1 and 2 and situated within the territory of other States Parties to this Convention.” “Article 12 The fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists referred to in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have outstanding universal value for purposes other than those resulting from inclusion in these lists.” The Constitutional Chamber (Sala) holds that the Convention Concerning the Protection of the World Cultural and Natural Heritage establishes even more specific obligations for the States Parties, which were approved by the Legislative Assembly through Law No. 5980; among these, our country must not only honor them, but also undertakes to implement positive or affirmative measures such as “identifying, protecting, conserving, rehabilitating, and transmitting the cultural and natural heritage to future generations.” As affirmative obligations (obligaciones de hacer), the State must primarily adopt measures involving efforts to locate and identify property governed under the protection of the Treaty.

This means that the State must not only seek out cultural and natural heritage within its territory for the future nomination of potential properties, but must also translate its commitment into actions involving their protection and conservation, as well as the rehabilitation of areas containing property that forms part of a State’s cultural and natural heritage. For this Chamber, the obligation established in Article 4 of the Convention is not exhausted by the formal designation of sites under a particular legal regime, whether national or international; rather, it entails assertive and progressive action by the State, without prejudice to eventually obtaining financial, artistic, scientific, and technical benefits through the mechanisms provided for by the Convention. Cultural properties may therefore be brought into use through their rehabilitation—that is, by enhancing their value as a source of financial resources.

Article 5 of the Convention requires appropriate legal, scientific, technical, administrative, and financial measures to achieve the purposes of Article 4. Thus, in referring to identifying, protecting, and conserving, as well as enhancing and rehabilitating heritage, the Convention uses the expressions “more actively” and the need for “appropriate administrative and financial measures.” In the Chamber’s opinion, all of this denotes a requirement of effectiveness that would permit those obligations to be translated into concrete actions, such as inter-institutional coordination and budgetary measures. The foregoing must therefore be understood as manifestly not limited to the adoption of mere legal measures, but as requiring States individually to coordinate assertive measures. Finally, if the properties referred to in Articles 1 and 2 of the Convention are declared universal heritage and give rise to the obligation of the States Parties to “cooperate” in their protection under Article 6, this entails prohibiting all measures detrimental to them, including omissions having the same result.

Accordingly, in light of the Convention, it is unlawful to take intentional measures that directly or indirectly damage cultural and natural heritage. In our view, this extends to the States’ primary obligations, reiterated in paragraph 2 of Article 6 when it reaffirms the obligation to identify, protect, conserve, and enhance that heritage, which is internationally regulated by paragraphs 2 and 4 of Article 11 of the Convention Concerning the Protection of the World Cultural and Natural Heritage. The Chamber understands that the obligation extends beyond the provisions of Article 11, such that properties not yet governed by the provisions of those paragraphs must nevertheless always be conserved and protected by States because of their potential value as properties that do not yet qualify but may be included on the World Heritage List in the future as the World Heritage Committee’s criteria evolve.

It would be contrary to the Convention’s foundations not to infer an initial obligation upon States to identify and locate cultural and natural properties within their territories, given that the Convention states that it notes “that the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction,” and further considers that “deterioration or disappearance […] constitutes a harmful impoverishment of the heritage of all the nations of the world,” in addition to recognizing that protection is incomplete in many cases. As can be seen, the legal coverage afforded by international instruments is the same for natural and cultural heritage; consequently, anything falling short of these standards will be unlawful, including failures of care that worsen the condition of cultural properties.

In accordance with the foregoing, it falls to the Chamber to determine whether promoting development through policies that allow archaeological, natural-heritage, cultural-heritage, or mixed sites to be used in ways that enhance their value, as sought by Decreto Ejecutivo 34282-TUR-MINAET-C, also constitutes a legitimate State objective.

The Convention for the Conservation of Biodiversity and the Protection of Priority Wilderness Areas in Central America, approved by Law No. 7433, defines: “Conservation: Preservation, maintenance, restoration, and sustainable use of the elements of biodiversity.” Specifically, Article 25 of this international agreement, within its regulatory framework, expresses an interest in integrating various conventions, which it lists in the following order: the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Convention on the Conservation of Wetlands of International Importance and Sites for Migratory Birds (RAMSAR), and the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, and states that every safeguard must be provided to ensure their domestic implementation. In this regard, international rules must produce concrete effects within the domestic legal order.

Thus, the crux of the dispute in the action should not be confined solely to the conservation of Isla San Lucas’s natural heritage, understood exclusively in ecological and environmental terms. The Chamber has found that the passage of decades has allowed the regeneration of the secondary forest (bosque secundario), such that, in this respect, its designation as a Protected Wilderness Area (Área Silvestre Protegida) secured the protection from the Ministerio de Ambiente, Energía y Telecomunicaciones necessary for the recovery of areas formerly used, for example, for cattle ranching. However, the evident lack of maintenance of the historic center, its progressive deterioration, and the threat to the historical and cultural properties located on Isla San Lucas must not be taken lightly. The Executive Branch’s intention to develop ecotourism in the region as a measure to protect cultural heritage opens a new area of discussion that would consequently allow the reaffirmation of concepts and properties that are likewise protected internationally and incorporated into the obligation contained in Article 89 of the Constitución Política, which identifies the protection of natural beauty and the conservation and development of the Nation’s historical and artistic heritage as cultural objectives.

Specifically, the Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved by Law 6360, likewise applies to this case, because Executive Decree No. 30.714 of the Ministerio de Cultura constitutes the administrative act (acto administrativo) protecting the archaeological sites associated with the Sapoa-Ometepe culture (800-1500 d.c.) under the Convention Concerning the Protection of the World Cultural and Natural Heritage, although it does not cite that Convention as its legal basis. In this same regard, the Treaty provides:

“Article 1 The purpose of this Convention is the identification, registration, protection, and safeguarding of the property constituting the cultural heritage of the American nations, in order to: (a) prevent the unlawful export or import of cultural property, and (b) promote cooperation among the American States for mutual knowledge and appreciation of their cultural property.” “Article 2 The cultural property referred to in the preceding article is that included in the following categories:

monuments, objects, fragments of dismembered buildings, and archaeological material belonging to American cultures predating contact with European culture, as well as the human remains and related fauna and flora; monuments, buildings, and artistic, utilitarian, and ethnological objects, whether intact or dismembered, from the colonial era, as well as those corresponding to the nineteenth century; …

all cultural property that any of the States Parties expressly declares or indicates to be included within the scope of this Convention.” In this regard, the Chamber considers that the Convention also encompasses the provisions of Decreto Ejecutivo 34828-TUR-MINAET-C insofar as it seeks to safeguard the property protected by the Convention. The Convention therefore likewise requires the State to make efforts to identify, register, protect, and safeguard the property described in Article 2. In this case, that property would include not only the archaeological sites mentioned, but also the buildings dating from the nineteenth century; protection would therefore extend to the entire complex and the penitentiary on Isla San Lucas, whose history began on February 28, 1873. In conclusion, the Chamber is convinced that protecting cultural, historical, and architectural property allows it to be developed and made accessible so that it may fulfill an extremely important social function: transmitting a Nation’s past and present values. This is subject only to restrictions that are consistent with the principles of reasonableness and proportionality and are grounded in technical and scientific knowledge; otherwise, such restrictions must be regarded as a violation of the Constitución Política (…)

IX.On the implications of sustainable development (desarrollo sustentable) and tourism. - The cornerstone of development is environmental sustainability (sustentabilidad ambiental), which seeks to protect and conserve the environment and its natural resources while balancing economic diversification and improvement of the quality of human life. The central idea underlying the principles of environmental law (principios de derecho ambiental) lies in the rational use of natural resources, together with environmental protection, to ensure sustainability for present and future generations. Any economic or productive activity that affects or uses the environment must adhere to the philosophy of sustainable development according to its environmental impact; in this regard, since the Executive Branch has relied on objectives of this kind for economic and social development, this Chamber considers that rural tourism, as such, must uphold those values that protect sustainable development, because it cannot be an exception, and controlling the effects it may have on the environment is constitutionally significant.

One example is the Certificación para la Sostenibilidad Turística issued by the Instituto Costarricense de Turismo as an extremely important component that represents progress in protecting the right to a healthy and ecologically balanced environment (derecho al ambiente sano y ecológicamente equilibrado) while promoting economic diversity; this measure creates incentives for businesses engaged in the tourism-based use of natural and cultural resources. Furthermore, Ley No. 8724, the Ley de Fomento del Turismo Rural Comunitario, seeks to provide benefits to families and communities by using their localities as tourist destinations, and its provisions include subsection a) of Article 2, which states: “Make optimal use of environmental resources, which are a fundamental element of tourism development, maintaining essential ecological processes and helping to conserve natural resources and biological diversity.” In this regard, the Código Ético Mundial para el Turismo, adopted by resolution A/RES/406(XIII) of the thirteenth Asamblea General de la OMT in Santiago de Chile, el 27 de diciembre al 1 de octubre de 1999, and adopted by the Asamblea General de las Naciones Unidas in resolution A/RES/56/212 of 21 de diciembre de 2001, provides that:

“Article 3.

Tourism, a factor in sustainable development 1. All stakeholders in tourism development have a duty to safeguard the environment and natural resources with a view to sound, continuous, and sustainable economic growth capable of equitably meeting the needs and aspirations of present and future generations.

2. National, regional, and local public authorities shall favor and encourage all forms of tourism development that conserve scarce and valuable natural resources, particularly water and energy, and avoid waste production insofar as possible.

…

4. Tourism infrastructure shall be designed and tourism activities planned in a manner that protects the natural heritage constituted by ecosystems and biological diversity and preserves endangered species of wild fauna and flora. Stakeholders in tourism development, particularly professionals in the sector, must accept limitations on their activities when those activities are carried out in especially vulnerable areas: desert, polar, or high-mountain regions, coastal areas, tropical forests, or wetlands suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and valuable forms of tourism, provided that they respect the natural heritage and local population and remain within the carrying capacity (capacidad de ocupación) of tourist sites." To ensure equitable access to development, the traditional notion that development occurs only in urban areas must be abandoned, since rural areas may make use of other factors that make a place unique, while ensuring, of course, that those conditions are not threatened. There is no doubt that the use of natural resources entails economic diversity; accordingly, the environment requires protection so that it can withstand the burdens of human intervention, making it necessary to ensure reasonable development in balance with the environment, such that the degree of oversight exercised may increase according to the potential environmental impact.

Consequently, tourism development must not entail the destruction of public-domain property (bienes del dominio público) or the surrounding environment, because it depends on their preservation to achieve economic improvement for rural communities within the parameters of sustainability. The State’s constitutional purposes include developing policies that reduce social and economic disparities, adapted, of course, to natural, rural, or mixed environments; all of this arises from the provisions of Article 50 of the Constitution. Access to development in terms of employment opportunities or quality of life, and therefore economic progress, forms part of the recognition and advancement of human rights; hence, rural development through tourism must not require individuals to abandon their customs and traditional ways of life in order to migrate to cities, but rather to adapt them to present-day needs and advances.

In this regard, the Chamber considers that humanity’s true challenge is to generate progress and—why not—happiness, both material and spiritual, without threatening the resources available in the environment; the opposite would simply result in social inequalities that prevent progress toward a new stage of human development. The Chamber recognizes that the balance between the two is very delicate, but to achieve it without degrading the environment, recourse must be had to science and technology to determine the burdens that particular natural environments and their resources can withstand without violating the rights of present and future generations. For all these reasons, the conflict between environmental protection and other rights arising from it, which are widely recognized in international human rights instruments, warrants these considerations by this Constitutional Court. This Chamber considers that rural development based on tourism directed toward natural and cultural heritage is constitutionally legitimate so long as it is sustainable.

Thus, if science and technology suggest imposing certain limitations on the numbers of visitor groups, during particular seasons, etc., such limitations could not be deemed unconstitutional because they are based on sustainability criteria, although without disregarding the various international provisions that safeguard the right to the enhancement (puesta en valor) of those assets belonging to national history, not merely as assets of the national heritage but of all humanity; restricting access to them by the public is not legitimate.

X.On the protection of the surroundings and landscapes of the natural and cultural heritage.- This Constitutional Court has derived environmental rights and principles from Articles 7, 48, 50, and 89 of the Constitution and the international treaties cited, while also recognizing the State’s need to contribute through policies that promote economic diversity and the conservation and protection of cultural and natural assets, because without both, equitable human progress for all social sectors could not be said to exist. Environmental protection, economic diversification, and quality of life are legitimate objectives of the State, which must implement development policies in both urban and rural areas. However, the type of progress pursued in a rural environment must depart from a centralist development model that assumes development can occur only in urban areas, when instead it must make use of distinctive characteristics and address other specific needs.

Rural development based on tourism must be founded on other particular pillars, one of which legal scholarship identifies as the preservation of the inherent values of rural areas. This principle is based on the requirement that rural areas be sustainably conserved. In this sense, forests, the sea, mountains, volcanoes, mangroves, wetlands, etc., provide different kinds of development settings corresponding to the various interests that may exist. Each one, in itself, constitutes a scenic value subject to constitutional protection. However, the task of targeting and promoting these types of rural development policies falls within the constitutional functions of the Legislature and the Executive Branch. This Chamber must emphasize that preserving the distinctive characteristics of rural environments or natural or scenic surroundings is a value enshrined in Article 89 of the Constitution that requires protection, and such protection must extend to the surroundings that enhance their value, not only as rural spaces but also as tourist destinations, so that the positive effects may be felt in the neighboring community (sic). In this regard, Article 35 of the Ley Orgánica del Ambiente provides that:

“The creation, conservation, administration, development, and oversight of protected areas shall have the following objectives:

a…

…

• f)To protect the natural and scenic surroundings of historic and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.” The Political Constitution identifies as legally relevant objectives not only the protection, but also the conservation and development of the Nation’s historical and artistic heritage. In the dictionary of the Real Academia Española, “to protect” has the following meanings: 1.- To shelter, favor, defend; and 2.- To safeguard a person, animal, or thing from harm or danger by placing something over or around it, etc. “To conserve,” in turn, means: 1. To maintain something or ensure its permanence; 2. To keep someone alive and unharmed; 3. To continue the practice of customs, virtues, and similar things; 4. To keep something carefully, among other meanings.

And “to develop,” in the applicable sense, means to expand or increase something of a physical, intellectual, or moral nature. Consistent with the foregoing, the Law authorizes as legitimate objectives the creation, conservation, administration, development, and oversight of protected areas containing historical, architectural, or archaeological sites or centers, which means that, in managing cultural resources, human intervention is permitted for the maintenance, safeguarding, preservation, and care of the assets located within their surroundings, while development promotes the recovery and enhancement of any sites of interest that may exist there and in the surrounding area. Assets of cultural interest require protection and conservation measures within the environment in which they are located so that they may be distinguished as tourism resources; otherwise, the State’s omission would constitute unlawful abandonment from a constitutional standpoint and in light of the international treaties in force in the Republic.

Furthermore, conservation entails the idea of ensuring protection and permanence within the context of the values and customs characteristic of urban and rural spaces; accordingly, sustainability criteria and practices must be accepted. The administration and development of the asset must be protected, and the asset must be enhanced in accordance with the characteristics of its environment. Therefore, if it involves human-made infrastructure, it will require technical management, including maintenance and investment measures to ensure both its development when it is valorized and its conservation. In the case of Isla San Lucas, subsection f) of section 38 of the Ley Orgánica del Ambiente applies insofar as there are not only elements of natural heritage, but also, as a site containing historical and archaeological buildings, elements that are important to national culture and identity. Consequently, it is important to cite the Código Ético Mundial para el Turismo, which states:

“Article 4 Tourism, a factor in the utilization and enrichment of humanity’s cultural heritage Tourism resources belong to the common heritage of humanity. The communities in whose territories they are located have particular rights and obligations with respect to them.

Tourism policies and activities shall be carried out with respect for the artistic, archaeological, and cultural heritage, which they must protect and pass on to future generations. Particular attention shall be paid to the protection and rehabilitation of monuments, shrines, and museums, as well as sites of historical or archaeological interest, which should be widely open to tourist visits. Public access to privately owned cultural assets and monuments shall be encouraged with full respect for the rights of their owners, as shall access to religious buildings without prejudice to the needs of worship.

Resources derived from visits to sites and monuments of cultural interest should preferably be allocated, at least in part, to the maintenance, protection, improvement, and enrichment of that heritage.

Tourism activity shall be organized in a manner that allows traditional cultural and craft production, as well as folklore, to survive and flourish and does not lead to their standardization and impoverishment. (emphasis in bold is not in the original).

Costa Rican legislation sparsely regulates the possible administration of these historical sites, but the isolated provisions provide for the protection of natural and scenic surroundings, in which human intervention is permitted for the purpose of improving such places, not destroying or abandoning them. The Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, Ley No. 7555, provides that:

“Article 9. Obligations and Rights The designation of real property as a monument, building, or historical site entails the following obligations for the owners, possessors, or holders of rights in rem (derechos reales) over the property so designated:

To conserve, preserve, and adequately maintain the property.

...

• j)[…] The State and the respective municipality shall have the right to expropriate the property; they may exercise that right for the benefit of other public entities. This right extends to property that undermines environmental harmony or poses a risk to the conservation of property declared to be of historical-architectural interest.

The Executive Branch and the respective municipality shall be required to prevent the total or partial demolition of a protected building. They shall ensure that the use of protected property does not impair its conservation and is also consistent with the property’s inherent characteristics. In all cases, such use must not conflict with morality, good customs, or public order.” (emphasis in bold is not in the original) The Chamber also considers it important to note that Articles 71 and 72 of the Ley Orgánica del Ambiente clearly delineate the foregoing:

“Article 71.- Visual pollution. Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum permissible limits established by existing or future technical standards shall be deemed visual pollution.

Article 72.- Landscape conservation. The competent authority shall promote the participation of the public and private sectors in landscape conservation.

When a project requires the landscape to be affected, the resulting landscape must be of at least the same quality as the previous one.” The foregoing establishes not only the purposes of conservation, preservation, and development, but also the principle of sustainability in the utilization and development of artistic, archaeological, and cultural heritage assets, so as to enrich their surroundings by improving their scenic beauty and to provide access and safety for property and persons, as advised by the relevant technical and scientific standards. Moreover, alongside the need for the rehabilitation, restoration, maintenance, and oversight of activities are, ultimately, the social and economic benefits for the many sectors that will depend on this activity” (the underlining in the final paragraph was added.

In view of the foregoing, it bears reiterating that section 89 of the Political Constitution establishes, among other cultural purposes, the protection, conservation, and development of the State’s historical heritage. In addition, the ‘Convención para la Protección del Patrimonio Mundial, Cultural y Natural’ provides in Article 5(c), as part of the obligations of the States Parties, that they shall “Develop scientific and technical studies and research and perfect methods of intervention that enable a State to address the dangers threatening its cultural and natural heritage; d) Adopt appropriate legal, scientific, technical, administrative, and financial measures to identify, protect, conserve, enhance, and rehabilitate that heritage.” Additionally, section 6 eiusdem provides that the States Parties may not deliberately adopt measures that could directly or indirectly damage cultural and natural heritage.

In addition to the foregoing, it should be noted that, although this Constitutional Court has recognized that safeguarding cultural heritage encompasses the possibility of access for the purpose of ensuring the transmission of past and present values, it is no less true that this must occur in accordance with the principle of reasonableness and proportionality.

On this issue, it bears reiterating that, in judgment no. 2003003656 at 14:43 hours on May 7, 2003, this Chamber developed the constitutional principle of cultural-heritage valorization (puesta en valor del patrimonio cultural), stating that:

“the application of this principle means that the safeguarding of cultural heritage (tutela del patrimonio cultural) must promote its proper economic and social usefulness, but in such a way that its cultural value is not placed at risk; that is, the aim is to promote the usefulness of these buildings so as to allow their participation and continued presence in society’s economic and social activity while, at the same time, maintaining and preserving the spiritual value (artistic, architectural, historical, technical, archaeological, etc.) that gave rise to and justifies the special protection regime (régimen de tutela especial). Thus, the principle is established that monuments are intended to fulfill a social function, namely, to contribute to national culture and identity; in other words, the aim is to revalue monumental heritage in accordance with the public interest and for the benefit of the nation, without thereby affecting the rights of the private parties involved (the right to property or freedom of commerce, for example), since the intent is to establish these buildings as instruments of progress and development, first for their owners and, second, through a multiplier effect, for the country’s economic development.

The aim is thereby to transform economic potential into present value, making unexploited wealth productive through the revaluation process (proceso de revalorización), which, far from diminishing its purely historical or artistic significance, enhances it by transferring it from the exclusive domain of scholarly minorities to the knowledge and enjoyment of the popular majorities. The starting premise is that monuments form part of the economic resources of nations and, of course, of their owners or holders of some right in rem (derecho real), which is why efforts must be mobilized to ensure their best use as an indirect means of promoting the country’s development, whether as a facilitator of tourism and commerce or even for residential use. In many countries, the application of this principle has led to the establishment of affordable-housing programs. In any event, the use made of this type of building must encompass activities that maintain the property’s cultural value, that is, activities that do not endanger the property as such.

Enhancement (puesta en valor) is equivalent to occupying the building under harmonious objective and environmental conditions that, without distorting its nature, highlight its characteristics and enable its optimal use; it therefore entails systematic, eminently technical action aimed at using each and every one of those properties in accordance with its nature, highlighting and exalting their characteristics and merits until they are placed in a condition to fully perform the new function for which they are intended, namely, the social function they fulfill at the objective urban-planning level and at the meta-functional level. Accordingly, conservation and development are not contradictory but intimately connected, and the latter presupposes the former, insofar as heritage brings substantial tourism benefits or serves as an excellent option for housing programs, allowing significant savings in construction costs (of up to 35% of the total value of a new project) and producing a better distribution of labor and capital, thereby contributing to the social and economic regeneration of that sector.

Likewise, enhancement has a beneficial indirect effect on the urban perimeter, since the diversity of monuments and buildings of marked cultural, historical, artistic, and architectural interest located in cities forms part of the urban landscape, that is, of the environment—according to the comprehensive meaning explained above—and thus exerts a multiplier effect on the remainder of the area, which is revalued as a whole as a consequence of the urban enhancement and renewal plan (urban planning). It should be clarified that this principle does not apply exclusively to historic ensembles (conjuntos históricos), but to all historical-architectural heritage (patrimonio histórico-arquitectónico); however, its application is more clearly illustrated in the former, as in the city of Colonial Havana, Old San Juan in Puerto Rico, or Antigua Guatemala, places where the everyday economic and social activity of an urban center has been promoted and where commercial, artisanal, tourism, and residential activities are conducted, the only difference being that the buildings comprising these centers are subject to a special regime under which their demolition or total or partial destruction is prohibited, their owners are required to conserve and maintain them, and they are subject to traffic-management regulations—which are much stricter and more closely controlled—and beautification regulations, including those concerning the placement of signs and advertisements” (emphasis not in the original).

Stated differently, safeguarding historical-architectural heritage entails, on the one hand, protecting its cultural value and, on the other, promoting its economic and social usefulness. In that respect, although this type of heritage stands out for its cultural importance, it is also regarded as a means of facilitating economic development, for example through commerce or tourism. Nevertheless, the primary purpose is the conservation and preservation of cultural heritage, which is why the activities conducted or uses made within it must not endanger it—a risk that can be prevented only if prior technical studies (estudios técnicos previos) are available to enable its protection. This is illustrated by the discussion in the aforementioned judgment no. 2003003656, which emphasizes that the recommendation concerning the safeguarding of historic ensembles and their role in contemporary life, adopted within the framework of the UNESCO General Conference, “reiterates the principle that restoration is exceptional in nature and, if undertaken, must be based on scientific principles.” Accordingly, preserving the cultural heritage located on isla San Lucas means that, before any legislative decision involving it and its surroundings is adopted, technical studies supporting its preservation must be available.

This is essential so that the interaction among cultural heritage (in this case, historical-architectural heritage), the environment, and human beings may be studied and so that it may be determined whether a proper balance among those elements can be achieved. Specifically, the technical studies must determine the type of intervention (intervención) that may be carried out at the site in order to: i) guarantee the protection, conservation, revaluation, and rehabilitation of the aforementioned heritage; and ii) verify that the measures to be implemented will not cause direct or indirect damage to such heritage.

In that regard, this Court stated in the cited judgment no. 2010013099: “if science and technology suggest imposing certain limitations on the numbers or groups of visitors, at certain times of year, etc., those limitations could not be deemed unconstitutional, since they reflect sustainability criteria, without disregarding the various international provisions safeguarding the right to enhance those properties that belong to national history, not only as assets of the national heritage but of all humanity, and restricting them from the public is not legitimate”; it also stated: “Properties of cultural interest require protection and conservation measures within the setting in which they are located so that they may be distinguished as tourism resources; otherwise, the State’s omission would constitute unlawful abandonment from a constitutional standpoint and in light of the international treaties in force in the Republic.

In addition, conservation entails the notion of ensuring protection and permanence within the context of the values and customs characteristic of urban and rural areas, and sustainability criteria and practices must therefore be accepted. The property’s management and development must be protected, and the property must be enhanced in accordance with the characteristics of its environment; therefore, where human-made infrastructure is involved, this will entail technical management requiring maintenance and investment measures to ensure its development when it is enhanced, as well as its conservation” (emphasis added).

Consistent with the foregoing, the case law cited in section II of this dissenting opinion (voto salvado) demonstrates the significance of the preventive principle (principio preventivo) in matters involving cultural heritage—judgment no. 2002005245 of 15:20 hours on 29 de mayo de 2002—and the importance of ensuring that the protection afforded by the State to such heritage is provided “on the basis of a scientific framework consistent with reality, both in the fields of territorial and architectural theories and in the legal field, since it interacts with other disciplines and bodies of knowledge, such as History, Anthropology, Architecture, Restoration Theory, and Law, among others; and that it takes into consideration the country’s particular circumstances, such as the degree of underdevelopment and economic dependence”—judgment no. 2003003656 of 14:43 hours on 7 de mayo de 2003.

In conjunction with the foregoing, it should be recalled that the aforementioned law no. 4711, which approved the recommendation concerning the preservation of cultural property endangered by public or private works, signed in Paris on 22 de noviembre de 1968, stated: “Well in advance of the execution of public or private works that may endanger cultural property, detailed studies should be undertaken to determine: a. The measures to be taken to preserve important cultural property in situ; b. The scope of the necessary salvage work, such as the selection of archaeological sites to be excavated, the buildings to be relocated, or the movable cultural property that must be saved, etc.” With regard to the matter sub judice, it must be emphasized that, with the enactment of law no. 9892, a portion of isla San Lucas ceased to be a national wildlife refuge (refugio nacional de vida silvestre) and became a national park (parque nacional); that is, it was granted a higher management category (categoría de manejo).

Therefore, as a matter of principle, an increase in management category strengthens environmental protection, meaning that prior technical studies are not necessarily required to justify such a decision. For that to be the case, however, there must be no doubt whatsoever that the change does in fact increase the level of protection; otherwise, technical studies become indispensable to guarantee that, in practice, the proposed change does not instead result in diminished protection.

This case presents particular circumstances because isla San Lucas is not only a protected wilderness area (área silvestre protegida) but has also been declared cultural heritage. This convergence of circumstances means that, in view of the island’s particular environmental and cultural characteristics, technical studies must be available to analyze the implications of the interaction proposed by the law among cultural heritage, the environment, and human beings and, moreover, to determine whether the referenced change achieves a proper balance among those elements.

This Constitutional Court has recognized that Isla San Lucas enjoys dual special protection in relation to the right to a healthy and ecologically balanced environment and the right to access and enjoy cultural heritage. This means that, in the sub examine, those rights must be safeguarded harmoniously, so that the protection of one does not entail infringement of the other. In this regard, it bears repeating that, in judgment no. 2003003656, this Chamber emphasized that: “the preservation of cultural heritage helps maintain the environmental balance necessary for urban development because, for its effective protection, it requires respect for the urban scale, structure, and dimensions; regulates physical carrying capacity; and calls urban functions and services into question, thereby resulting in better environmental quality. It also helps preserve the city’s distinctive image or perceptual coherence, which gives it identity or formal cohesion.” Accordingly, pursuant to the principle of objective environmental protection (principio de objetivación de la tutela ambiental), for a change in the management category (categoría de manejo) of a protected wilderness area (área silvestre protegida) (which also contains declared cultural heritage zones) to be constitutionally valid, it must be supported by duly substantiated scientific evidence that justifies the change and protects the environment and cultural heritage against direct or indirect adverse effects.

Specifically, section 35 of the Ley Orgánica del Ambiente states: “The creation, conservation, administration, development, and oversight of protected areas shall have the following objectives: (…) f) To protect the natural and scenic surroundings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.” For such scientific studies to be legally valid as a requirement for changing the management category under analysis, they must be conducted beforehand, be sufficient and specific to the area, and be duly substantiated, so as reasonably to determine that neither the environment nor cultural heritage will be harmed or endangered. They must therefore examine, at a minimum: i) the degree of impact of the corresponding measure on the environment and cultural heritage; ii) recommendations intended to mitigate the negative impact on the environment and cultural heritage; and iii) evidence of how the measure adopted entails development that meets present needs without endangering the ability of future generations to meet their own needs—see judgment no. 2019000673, issued at 12:00 on January 16, 2019—.

The foregoing is consistent with the principle of objective environmental protection, regarding which this Court has stated:

“With respect to the environment, which is the object of the fundamental right described above, our Constitution further requires that it be ‘healthy.’ The requirement that it be ‘healthy’ leads us to ‘regenerative capacity’ and ‘successional capacity’ as guarantees of life. From both requirements—‘healthy’ and ‘balanced’—arises the need for sustainable development; quality of life and environmental quality depend upon it. With the concepts of ‘environment,’ ‘healthy,’ and ‘ecologically balanced,’ the constitutional provision introduced science and technology into environmental decisions, whether legislative or administrative, such that, under sections 16 of the Ley General de la Administración Pública and 38 of the Ley Orgánica del Ambiente, State actions in environmental matters must be based on, and may not contradict, the unequivocal rules of science and technology, in order to achieve the full and universal enjoyment of a healthy and ecologically balanced environment and, moreover, ‘greater well-being for all the country’s inhabitants.’ With respect to subjecting legislative and administrative decisions to the unequivocal rules of science and technology, the Chamber has termed this the principle of objective environmental protection: ‘The objective basis of environmental protection (…) is a principle that cannot in any way be confused with the foregoing principle [the precautionary principle or “principle of prudent avoidance”], because, as a principle derived from articles 16 and 160 of the Ley General de la Administración Pública, it translates into the need to support decision-making in this field with technical studies, both with respect to acts and to generally applicable provisions—whether statutory or regulatory—which gives rise to the requirement of adherence to science and technology and thereby constrains the Administration’s discretion in this field.

Thus, based on the results derived from those technical studies—such as environmental impact studies—if objective technical criteria reveal the likelihood of evident harm to the environment, natural resources, or human health, the proposed project, work, or activity must be rejected; and, in the event of “reasonable doubt,” decisions must be made in favor of the environment (pro-nature principle (principio pro-natura)), which may entail adopting both compensatory and precautionary measures in order to protect the environment adequately.’ (Judgments of the Constitutional Chamber Nos. 21258-10, 17126-06, 14293-05)” (emphasis added). (Decision no. 2012-13367, issued at 11:33 on September 21, 2012).

This criterion is reflected in many rulings of this Chamber, for example, judgment no. 2011016938, issued at 14:37 on December 7, 2011:

“IV.—PROTECTED WILDERNESS AREAS. A protected area is ‘a defined terrestrial or coastal-marine geographical area that is designated, regulated, and managed to fulfill specific conservation objectives, that is, to produce a specified series of goods and services (in situ conservation)’ (see article 9 of the Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central, approved by Ley No. 7433 of September 14, 1994). Likewise, domestic legislation defines ‘official wildlife conservation areas’ (áreas oficiales de conservación de la flora y fauna silvestres) as ‘protected wilderness areas under any management category, water-resource protection areas, and any other land forming part of the State forest estate’ (see article 2 of the Ley de conservación de la vida silvestre, No. 7317 of October 30, 1992). The legislature, for its part, has defined protected wilderness areas as follows:

“ARTICLE 58.— Protected wilderness areas Protected wilderness areas are delimited geographical zones consisting of land, wetlands, and portions of the sea. They have been so declared because of the special significance of their ecosystems, the presence of threatened species, their importance for reproduction and other needs, and their historical and cultural significance. These areas shall be devoted to conserving and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general.

The objectives, classification, requirements, and mechanisms for establishing or reducing these areas are set forth in the Ley Orgánica del Ambiente, No. 7554, of October 4, 1995. The prohibitions applicable to natural and legal persons within national parks and biological reserves are set forth in the Ley de la Creación del Servicio de Parques Nacionales, No. 6084, of August 24, 1977.

During the process of satisfying the requirements for establishing State protected wilderness areas, the corresponding technical reports must include the relevant recommendations and justifications for determining the most appropriate management category to which the proposed area should be subject. In all cases, the establishment of areas and categories shall give due consideration to rights previously acquired by Indigenous or peasant communities and other natural or legal persons located within or adjacent to the area” (see Ley de biodiversidad, No. 7788 of April 30, 1998).

Likewise, statutory law sets forth a series of objectives and requirements for establishing protected wilderness areas:

“ARTICLE 35.—Objectives The creation, conservation, administration, development, and oversight of protected areas shall have the following objectives:

• a)To conserve natural environments representative of the different biogeographic regions and the most fragile ecosystems, in order to ensure the balance and continuity of evolutionary and ecological processes.
• b)To safeguard the genetic diversity of the wild species upon which evolutionary continuity depends, particularly endemic, threatened, or endangered species.
• c)To ensure the sustainable use of ecosystems and their components by fostering the active participation of neighboring communities.
• d)To promote scientific research, the study of ecosystems and their balance, and the knowledge and technologies that enable the sustainable use and conservation of the country’s natural resources.
• e)To protect and improve aquifer zones and watersheds in order to reduce and prevent the negative impact that may be caused by their mismanagement.
• f)To protect the natural and scenic surroundings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest that are important to national culture and identity.

ARTICLE 36.—Requirements for creating new areas To create State-owned protected wilderness areas, regardless of the management category established, the following requirements must first be met:

• a)Preliminary physiographic, biological-diversity, and socioeconomic studies justifying their creation.
• b)Definition of the area’s objectives and location.
• c)A technical-feasibility and land-tenure study.
• d)Minimum funding to acquire, protect, and manage the area.
• e)Preparation of plans.
• f)Enactment of the corresponding law or issuance of the corresponding decree” (see Ley Orgánica del Ambiente, No. 7554 of October 04, 1995).

It follows from the foregoing quotations and the analysis of the legal instruments identified by the petitioner that declaring a protected wilderness area requires compliance with a series of requirements and studies; a mere expression of intent by the Administration is insufficient (…)

Furthermore, an examination of the rules of the domestic environmental legal system, both those enacted by the Legislative Branch and those under international law approved by it (sic), including the regulations implementing such laws, shows that a protected wilderness area has special legal effect because it responds to clearly defined special grounds, is supported by scientific and technical studies, is founded on specific legal instruments, entails a series of obligations for the Administration, and forms part of a planning framework intended to preserve the natural resource. In this regard, the following is a representative sample of legal provisions demonstrating the foregoing:

“2.—National Reserves shall mean: Regions established for the conservation and use, under official oversight, of natural resources, in which flora and fauna shall be afforded all protection compatible with the purposes for which such reserves are created” (see Convención para la protección de la flora, fauna y bellezas escénicas naturales de los países de América, approved by Ley No. 3763 of October 19, 1966).

“Article 3.- The Contracting Parties shall formulate and implement their management plans so as to promote the conservation of the wetlands included in the ‘List’ and, as far as possible, the wise use of the wetlands within their territory” (see Convention on Wetlands of International Importance as Waterfowl Habitat, approved by Ley No. 7224 of 09 de abril de 1991).

“Wildlife management areas (Áreas de manejo de vida silvestre): Wildlands that provide some degree of management and protection for wildlife” (see Wildlife Conservation Law, No. 7317 of 30 de octubre de 1992).

“ARTICLE 4 COMMITMENTS

1. 1All Parties, taking into account their common but differentiated responsibilities and the specific character of their national and regional development priorities, objectives, and circumstances, shall: […]

• e)Cooperate in preparing for adaptation to the impacts of climate change; develop and formulate appropriate and integrated plans for coastal-zone management, water resources, and agriculture, and for the protection and rehabilitation of areas, particularly in Africa, affected by drought and desertification, as well as by floods” (see United Nations Framework Convention on Climate Change, approved by Ley No. 7414 of 13 de junio de 1994).

“ARTICLE 8. In-situ conservation (conservación in situ) Each Contracting Party shall, as far as possible and as appropriate:

• a)Establish a system of protected areas (áreas protegidas) or areas where special measures must be taken to conserve biological diversity” (see Convention on Biological Diversity and annexes [Río de Janeiro, 1992], approved by Ley No. 7416 of 30 de junio de 1994).

“ARTICLE 19.- National strategies shall be developed to implement the plans for Protected Wildland Area Systems (Sistemas de Áreas Silvestres Protegidas), thereby safeguarding basic economic functions for local, regional, and global development and strengthening the institutional presence in those areas; to that end, national and international funding shall be sought for their effective implementation” (see Convention for the Conservation of Biodiversity and the Protection of Priority Wildland Areas in Central America, approved by Ley No. 7433 of 14 de setiembre de 1994).

“ARTICLE 42.- Delimitation of protected zones (zonas protegidas) The Ministerio del Ambiente y Energía, in coordination with the competent institutions, may delimit protection zones (zonas de protección) for certain marine areas, coastal areas, and wetlands, which shall be subject to land-use planning and management plans (planes de ordenamiento y manejo) in order to prevent and combat the pollution or degradation of these ecosystems” (see Organic Law of the Environment, No. 7554 of 04 de octubre de 1995).

“i) Protected wildland area (área silvestre protegida): An area, regardless of its management category, established by the Poder Ejecutivo for conservation and protection, taking into consideration the geographic, biotic, social, and economic parameters that justify the public interest” (see Article 3 of the Ley Forestal, No. 7575 of 13 de febrero de 1996).

“ARTICLE 61.- Protection of protected wildland areas. The State must give priority attention to the protection and consolidation of state-owned protected wildland areas located within the Áreas de Conservación. For these purposes, the Ministerio de Ambiente y Energía, in coordination with the Ministerio de Hacienda, shall include in the national budgets the corresponding transfers to the trust fund or protected-area financing mechanisms to ensure, at a minimum, the personnel and resources that the Sistema Nacional de Áreas de Conservación determines are necessary for the operation and integrity of state-owned protected wildland areas and the permanent protection of national parks, biological reserves, and other protected wildland areas owned by the State” (see Biodiversity Law, No. 7788 of 30 de abril de 1998).

“35. Management plan for a wildland area (plan de manejo en un área silvestre): A body of technical and scientific rules governing the activities to be carried out in the wildland area and its surroundings” (see Article 2 of the Fisheries and Aquaculture Law, No. 8436 of 01 de marzo de 2005).

“p) General management plan (Plan general de manejo): The planning instrument used to guide the management of a protected wildland area toward achieving its long-term conservation objectives. It is based on medium-term strategic courses of action and management objectives for the natural and cultural elements included within the area, as well as on the relationship between those elements and their socio-environmental surroundings. It is the basis for developing other planning and regulatory instruments for Protected Wildland Areas” (see Article 3 of the Regulations to the Biodiversity Law, Decreto Ejecutivo No. 34433 of 11 de marzo de 2008; the underlining in the preceding texts does not appear in the originals).

In view of the information contained in all those provisions, the response given in this matter by the Ministro de Ambiente, Energía y Telecomunicaciones (folio 87) is inadmissible where he states that “the legislation is clear: the Ley de la Zona Marítima Terrestre establishes that mangroves form part of the Public Zone of the ZMT; moreover, since 1977 all mangroves in the national territory have been declared Forest Reserves, and therefore the mangroves of Golfo Dulce are declared Protected Wildland Areas.” Specifically, the assertion that all mangroves—which are public zones—have been declared protected wildland areas is unacceptable. This is because, as follows from the regulations set forth above, a series of scientific, technical, legal, administrative, and budgetary requirements and elements is necessary to create such areas (…)” (emphasis added).

Furthermore, recently and unanimously, this Court issued judgment No. 2022022606 at 13:10 on 28 de setiembre de 2022, declaring Ley No. 9348 of 8 de febrero de 2016, known as ‘Ley del Refugio Nacional de Vida Silvestre Ostional,’ unconstitutional due to the lack of technical support:

“-The challenged law, through its various provisions, removes land from protection (desafectan) and reduces the degree of protection afforded to the Refugio de Vida Silvestre Ostional: As the petitioner points out, the legislature enacted several provisions entailing the removal of land from the protected area and reducing the degree of protection that had been afforded to it. It did so without justification in a technical study, as this Court has repeatedly required. Article 5, for example, changed its legal nature from an exclusively public refuge to a mixed public-private refuge, establishing that, from that point forward, it would no longer consist solely of State-owned land but would also include privately owned land recorded in the corresponding registry. Although the provision states that this will occur only if both forms of ownership are subjected to uses compatible with its environmental conservation and protection objectives under an integrated conservation approach, subsequent articles authorize activities for which there is no prior technical study establishing that they will not undermine the purpose for which the refuge was created.

Article 8, challenged herein, provides that ‘concessions may be granted to current occupants in the public-domain areas (áreas de naturaleza demanial) of the Refuge,’ except to those located within a fifteen-meter protection area surrounding the Refuge’s estuaries and mangroves; forests, forest lands, wetland ecosystems, the fifty meters of the public zone of the maritime-terrestrial zone measured from the ordinary high-tide line, areas exposed at low tide, islets, rocky outcrops, and other small areas and natural formations protruding from the sea. That provision states that the Área de Conservación may grant concessions where the study conducted for the particular case technically determines that they are not incompatible with the objectives and scope established in the general management plan, for the following uses potentially compatible with the Refuge’s conservation objectives: ‘a) Small-scale sustainable agricultural use. b) Residential and recreational residential use. c) Ecotourism cabins and lodges. d) Commercial use intended to support basic services for communities and visitors. e) Facilities for scientific or cultural research and training. f) Facilities for community services and social welfare. g) Research and implementation of community projects.’ Article 12 even establishes the payment of fees for carrying out those activities.

In other words, under those provisions, not only does the refuge lose part of its territory by changing its legal nature and allowing privately owned land within it, but also, without a prior technical study assessing potential environmental impacts, as required by the precautionary principle (principio precautorio), activities other than those established by the Ley Forestal for this type of mixed public-private refuge are authorized (for example, the agricultural, residential, and commercial uses contemplated in the challenged Article 8). Article 9 of the same law also introduces a new measure by authorizing land-use permits (permisos de uso de suelo) for public institutions to provide public services unrelated to the protected purpose, without any prior technical study likewise justifying why certain protected areas are not only removed from protection but also subjected to a reduced degree of environmental protection, since all such activities were previously prohibited and are now authorized by law without first establishing that they will not cause environmental harm.

Similarly, Article 10 of this law allows the Área de Conservación Tempisque to grant land-use permits within the Refuge to private universities, research centers or institutes, and local community organizations for research and the development of community projects. Moreover, these two provisions do not exclude the areas that are excluded from the granting of concessions, as the Procuraduría General de la República correctly states in its report. Indeed, wetlands, forest areas, forest lands or lands of that kind, and the other zones excepted under Articles 8 and 11 of the law are not safeguarded within the public zone, in violation of Articles 50 and 89 of the Carta Fundamental. Admittedly, Article 11 of the challenged law provides that a General Management Plan must be issued before concessions are granted in the Refuge and must determine that the uses are directed toward the Refuge’s conservation objectives, subject to the environmental and technical limitations and potential of each zone or subzone.

However, given the particular circumstances of this case—where, as reiterated, greater regulatory protection already existed and not only was part of its territory removed from protection, for purposes that even differed from environmental protection, but the degree of protection afforded to certain areas was also reduced in order to address an occupancy problem within this area, which is unrelated to its purpose—the legal reform had to be supported from its inception by a technical study justifying such changes and compensating for the existing environmental protection, as this Court had already indicated regarding this same refuge when ruling, through legislative consultation, on Bill No. 18.148, ‘Ley de Territorios Costeros Comunitarios,’ in judgment No. 2013-10158 at 15:46 on 24 de julio de 2013. Nevertheless, once again, no such study is present.

—Lack of technical support: The legislative file No. 18939 that gave rise to Law No. 9348 does not show that the technical-support requirement was satisfied under the terms previously stated by this Chamber in the aforementioned ruling 2013-010158. The explanatory statement to the bill clearly indicates that, at that time, the supporting technical reports were not available, stating: “The technical studies referred to by the Constitutional Chamber are at a highly advanced stage… They will be submitted to the legislative process in due course.” Although the Minister of Environment states in his report that there will be a General Management Plan as a prerequisite for granting concessions, and that a specific study will also be conducted in each case, this does not replace the PRIOR technical studies that must exist as the basis for the bill, which in substance entails reducing the Ostional Wildlife Refuge.

This is because those studies are not a mere formality, nor may they be replaced by subsequent or case-specific studies; rather, allowing land uses beyond those related to the conservation of a Wildlife Refuge would undermine the refuge’s very purpose, would in any event reduce the refuge’s area, and would thereby violate the right to the environment. Regarding the supporting party’s assertion that the technical report underlying the law is the report prepared by Dr. Allan Astorga, entitled “Strategic Environmental Assessment Report for the Ostional Management Plan,” it must be stated that this Chamber was able to review that report and concludes that it clearly is not the report that provides technical justification for the law, essentially for three reasons: the date of the report, its rationale, and its content. That report dates from 2009; the bill was introduced in 2013 and was submitted to the legislative file in junio del 2015.

A technical report serving as the basis for a bill must be submitted together with the bill. Moreover, it should be noted that when this Chamber considered the matter through the consultation procedure in its 2013 ruling, nothing was said at that time about this 2009 technical report serving as the basis for the bill. Furthermore, the rationale for that report is unrelated to the bill, since it states that it is a baseline study for preparing the Refuge Management Plan (“The objective of the study is to develop zoning based on Environmental Fragility Indices (Índices de Fragilidad Ambiental, IFA) for the Ostional National Wildlife Refuge… in order to establish a technical basis for the Management Plan for this collection of important ecosystems.”). Finally, its content does not address what a technical report supporting a bill that reduces the level of protection of a wildlife refuge should address, since it does not specifically state why the reduction is being made, how it is being made, or what compensation measures are established.

—Environmental public-domain status (demanialidad ambiental) entails a special protection regime: A declaration of public-domain status for environmental reasons entails a special sphere of protection insofar as it establishes a special ownership regime governed by stringent rules of public law and intended to safeguard fulfillment of the purpose of protecting the right to a healthy and ecologically balanced environment. In view of those foundational reasons and the benefits underlying its purposive dimension, any decision to remove that status in whole or in part, or to reconfigure its legal nature, requires and mandates the appropriate technical analyses weighing the environmental variable in decision-making, as a consequence of the principles of non-regression, progressive environmental protection, precaution, prevention, and pro natura. The environment’s special constitutional protection requires an exhaustive study of the reasons supporting such decisions in the context of the various levels comprising ecosystems, as well as the environment’s relationship with the human setting and, within it, the social and economic effects, among others.

Thus, the absence of that degree of technical rigor when changing the nature of the environmental public domain disregards and violates, even through the creation of risk, the substantive content of that right. The same must be noted regarding permission to conduct human activities within those territorial spaces without duly weighing the impact that such activities may have on the environment, for which consideration must be given to the property’s primary use regime, the types of ecosystems converging in that area, and whether special use regimes imposed by legal rules exist. Indeed, changing the use of property that has traditionally been subject to an environmental protection regime requires technical assessments of the consequences that these new human incursions will have on the ecosystem, as well as whether they are compatible with the environment within a context of environmental sustainability.

This entails weighing permitted conduct, corrective actions and procedures, mitigation measures, compensatory measures, and a range of other considerations absent from this file. As explained, this deficiency entails substantive violations that this Chamber cannot overlook if public assets (patrimonio público) are understood, conceptually, as the collection of property that by law—or a higher-ranking rule—is dedicated to public use and a public purpose. Although the regime governing its use is not entirely incompatible with private exploitation by third parties following express administrative authorization—which must be expressly regulated by a legal source—when environmental public-domain property (demanio ambiental) is involved, assessing this framework of permitted activities requires a meticulous, cautious, technical analysis that takes into account the environment’s particular conditions and characteristics as a protected legal interest, as well as its undeniable significance for contemporary human rights and the rights of future generations.

It is this protective purpose that requires the special and technical considerations discussed above in an effort to fulfill the constitutional obligation to safeguard the right to a healthy and ecologically balanced environment (…)” (emphasis added).

Accordingly, it is evident that this specialized Chamber has reiterated in numerous decisions the importance of the principle requiring objective environmental protection (principio de objetivación de la tutela ambiental), in order to ensure that environmental decisions are supported by scientific studies, thereby conditioning or restricting the Administration’s discretion in such matters. In this regard, concerning the natural and urban environments, the aforementioned judgment No. 2003003656, issued at 14:43 on 7 de mayo de 2003, states: “This latter provision establishes guidelines for public authorities to promote environmental protection, understood comprehensively—that is, not in the traditional sense, which has been limited to natural resources, commonly known as ‘the green,’ insofar as it has been understood to encompass natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the surroundings in which people live, which encompass not only nature’s scenic beauty, such as the landscape, but also everything relating to cities and urban and rural settlements—in other words, the concept of the urban environment.

It may well be said that these are two complementary aspects of a single reality, like two sides of the same coin: the natural environment and the urban environment. The aim is therefore to achieve a more humane environment: one that is not only healthy and ecologically balanced, but also serves as a symbolic reference point and a source of national, regional, or local identity. Thus, the fundamental right to a healthy and ecologically balanced environment—extensively developed in constitutional case law—encompasses both its natural and artificial components, the latter understood as the human habitat, what has been built by human beings, namely, the urban environment, so that they remain free from all pollution, both because of the effects and repercussions that pollution may have on the health of people and other living beings and because of the environment’s intrinsic value” (emphasis added).

Based on the foregoing, it is concluded that, in the sub examine, through the enactment of Law No. 9892, a portion of the ‘Isla San Lucas’ protected wilderness area (área silvestre protegida) was changed from the ‘national wildlife refuge’ management category to the ‘national park’ category. However, the record does not show that, prior to such a change and in view of the particular nature of Isla San Lucas, Parliament relied on properly substantiated prior scientific studies that justified the legislative decision from a technical and objective standpoint. This is particularly significant because, as stated ut supra, cultural heritage exists on the island that may be affected by the change in management category.

It should be noted that the law challenged here modified the regime governing the Isla San Lucas protected wilderness area by introducing differentiated zoning (zonificación diferenciada), a novel aspect compared with the previous protection regime. In other words, this is not simply a change in the area’s name; rather, pursuant to Article 1 of Law No. 9892, specific conditions are added: “in addition to its status as a protected wilderness area, it shall be historical and architectural heritage and a sustainable tourism-use zone in the specific areas designated in this law.” As can be seen, Isla San Lucas now has differentiated management zones; however, there is no technical study demonstrating that no environmental impact requiring equivalent compensation will occur. Nor is there any technical basis supporting differences in the management of Isla San Lucas compared with the general regime governing protected wilderness areas.

In reality, all the foregoing constitutes a reduction in the level of environmental protection afforded to the island, because there are no technical criteria justifying either the reduction made to the wildlife refuge or the zoning proposed for the new national park. Specifically, there is no technical support for the prescribed subdivision (fraccionamiento) demonstrating that no harm has been caused, or will be caused, to the ecosystem as a whole or to the comprehensive protection of the island.

It must be noted that national wildlife refuges focus on the conservation, research, enhancement, and management of wild flora and fauna, particularly those at risk of extinction. According to UICN, this management category focuses on protecting particular habitats or species; that is, its management is targeted at specific, more limited habitats or species. Furthermore, in the case of state-owned national wildlife refuges—such as Isla San Lucas—only activities defined in the corresponding management plan may be carried out, following review of the relevant environmental impact assessments (evaluaciones de impacto ambiental), and, pursuant to Article 70 of the Reglamento a la Ley de Biodiversidad, “only research, training, and ecotourism activities may be conducted.” In this regard, Executive Decree No. 32633 of March 10, 2005, “Regulations to the Wildlife Conservation Law Governing Fishing and National Wildlife Refuges,” defines which activities may be carried out in state-owned national wildlife refuges, in accordance with the sustainable-development principles set forth in the management plan:

“Article 151.—MINAE, through SINAC, may authorize the following activities within the boundaries of Mixed-Ownership Refuges and Privately Owned Refuges, in accordance with the sustainable-development principles set forth in the management plans:

• a)Agricultural and livestock use.
• b)Residential use.
• c)Recreational tourist housing.
• d)Tourism developments, including hotels, cabins, lodges, or other establishments engaged in similar activities.
• e)Commercial use (restaurants, stores, and others).
• f)Extraction of quarry materials (sand and stone).
• g)Scientific or cultural research.
• h)Other purposes of public or social interest and any other activity that SINAC considers appropriate and compatible with conservation and sustainable-development policies.” National parks, in turn, possess other qualities that justify their differentiated management. In this regard, it should be recalled that the IUCN conceptualizes them as “large natural or near-natural areas established to protect large-scale ecological processes, together with the complement of species and ecosystems characteristic of the area, which also provide a foundation for spiritual, scientific, educational, recreational, and visitor opportunities that are environmentally and culturally compatible.” In that connection, as stated ut supra, the “Convention for the Protection of the Flora, Fauna and Natural Scenic Beauties of the Countries of America” provides that national parks shall be under official supervision—Article 1—that the boundaries of this protected-wildland management category (categoría de manejo de áreas silvestres protegidas) may be altered only by legislative authority, and that the Contracting Governments must provide facilities “for public recreation and education, consistent with the purposes pursued by this Convention”—Article 3.

In addition, although national parks seek to protect and conserve natural beauty and biodiversity, it is equally true that public enjoyment is also promoted and that the restricted granting of certain concessions and permits is allowed under the terms provided in Article 12 of the National Parks Service Law. Moreover, exploitation of existing resources for commercial purposes is prohibited under this management category.

Likewise, Article 8 of the National Parks Service Law contains a series of prohibitions applicable to visitors to national parks, namely:

“ARTICLE 8.—Within national parks, visitors are prohibited from:

• 1)Cutting down trees and extracting plants or any other type of forest product.
• 2)Hunting or capturing wildlife, or collecting or extracting any wildlife products or remains.
• 3)Hunting sea turtles of any species, or collecting or extracting their eggs or any other products or remains.
• 4)Scratching, marking, staining, or causing any type of damage or deterioration to plants, equipment, or facilities.
• 5)Engaging in sport, artisanal, or industrial fishing, except as provided in Article ten.
• 6)Collecting or extracting coral, shells, rocks, or any other marine product or waste.
• 7)Collecting or extracting rocks, minerals, fossils, or any other geological product.
• 8)Carrying firearms, harpoons, or any other instrument that may be used for hunting.
• 9)Introducing exotic animals or plants.
• 10)Grazing or watering livestock, or raising bees.
• 11)Causing any type of environmental pollution.
• 12)Extracting stone, sand, gravel, or similar materials.
• 13)Feeding or giving water to animals.
• 14)Constructing electricity or telephone transmission lines, aqueducts, roads, or railways.
• 15)Engaging in any type of commercial, agricultural, or industrial activity.” Furthermore, in June 2020, SINAC issued the General Management Plan for the Refugio Nacional de Vida Silvestre Isla San Lucas, which addressed, among other matters: i) the refuge’s general characteristics; ii) a socioeconomic, environmental, and cultural assessment; and iii) a strategic framework for managing the protected wildland area (área silvestre protegida). Although that plan included an updated analysis of the strengths, weaknesses, threats, and opportunities faced on Isla San Lucas, it is equally true that the study was conducted to establish the management of the Refugio Nacional de Vida Silvestre Isla San Lucas, not to determine whether part of its area—which includes a cultural-heritage zone—should become a national park with a “tourism zone” subject to differentiated management. In other words, there are no technical studies supporting the scope of the law in those terms.

In this connection, for example, the aforementioned plan established the management focal elements (elementos focales de manejo), which “consist of a process for selecting a small number of biodiversity resources that will be prioritized in the management of the Refugio Nacional de Vida Silvestre Isla San Lucas. The management focal elements guide the Refuge administration in allocating and prioritizing resources.” Thus, the management focal elements considered in the General Management Plan for the Refugio Nacional de Vida Silvestre Isla San Lucas—namely, i) the remaining tropical dry forest; ii) marine-coastal resources; iii) the infrastructure of the former Presidio, declared architectural heritage; and iv) archaeological sites—guide the allocation of resources in that protected wildland area.

This is significant because it shows that the study in question focused on the characteristics and conservation purposes of a specific management area, namely, the Refugio Nacional de Vida Silvestre Isla San Lucas, rather than on the technical and environmental feasibility of managing a sector of its geographic area under another management category, with its distinctive characteristics, such as a national park. Nor did it examine the implications of that change for the island’s cultural heritage.

It is also noteworthy that the General Management Plan for the Refugio Nacional de Vida Silvestre Isla San Lucas stated:

“6. Protected wildland area management category The category assigned to this protected wildland area is fully consistent with its geographic, ecological, environmental, and social conditions. The current international and national regulations (Executive Decree 34433, La Gaceta 68 of April 8, 2008) state that National Wildlife Refuges are: Geographic areas containing terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination thereof. Their primary purposes shall be the conservation, research, enhancement, and management of wild flora and fauna, particularly those threatened with extinction. For classification purposes, there are three types of national wildlife refuges: e.1) State-owned refuges. These are refuges in which the areas declared as such belong entirely to the State and are in the public domain. Their administration shall be exclusively entrusted to SINAC. Their main objectives are the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species.

Because they form part of the State’s natural heritage (patrimonio natural del Estado), only research, training, and ecotourism activities may be carried out. e.2) Privately owned refuges. These are refuges in which the areas declared as such belong entirely to private parties. Their administration shall be entrusted to the property owners and supervised by SINAC. Their main objectives are the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. On the lands of privately owned refuges, productive activities may be carried out only in accordance with the provisions of the Regulations to the Wildlife Conservation Law, Executive Decree No. 32633-MINAE of March 10, 2005, published in La Gaceta No. 180 of September 20, 2005. e.3) Mixed-ownership refuges.

These are refuges in which the areas declared as such belong partly to the State and partly to private parties. Their main objectives are the conservation, research, and management of wild flora and fauna, particularly species officially declared by the country to be endangered or to have reduced populations, as well as migratory and endemic species. Their administration shall be shared by the private owners and SINAC, so that only the activities previously indicated for state-owned refuges in subsection i) may be carried out on state-owned lands, whereas the activities specified for privately owned refuges in subsection ii) may be carried out on privately owned lands, subject to the respective criteria and requirements.

Having analyzed the current regulations, the objectives for creating the protected wildland area, its geographic and ecological context, zoning, and opportunities for sustainable and socioeconomic development, it may be concluded that the wildland area declared a national refuge has been properly categorized” (emphasis added).

Accordingly, the June 2020 General Management Plan for the Refugio Nacional de Vida Silvestre Isla San Lucas is not an adequate technical study on which to base the appropriateness of changing the management category of part of that refuge to a national park, because it does not satisfy the criteria established for scientific studies to validate a change in management category—namely, that they be conducted beforehand, be sufficient and individualized, and be duly substantiated so as reasonably to determine that no harm will be caused and that the environment and, in this particular case, cultural heritage will not be endangered.

With respect to the matter sub lite, the IUCN stated to this Court: “in the case of Parque Nacional San Lucas, the change in category reflects an interest in developing tourism use rather than strengthening the protection of the site’s natural and cultural values. In addition, there is a lack of studies and technical justification for the change in category and for introducing tourism activities within the site. As may be seen in the table below, the uses permitted in a Wildlife Refuge and a National Park differ in that biodiversity management and direct-use activities, the construction of public works, and tourism and recreational infrastructure are allowed in a refuge. These activities are not permitted in a national park (…).” At this point, because the foregoing bears on the precautionary principle (principio precautorio), or in dubio pro natura, it is appropriate to clarify its meaning. First, Judgment No. 2004002473, issued at 8:32 a.m. on March 12, 2004, conceptualized it as follows:

“IV.- PRECAUTIONARY PRINCIPLE (PRINCIPIO PRECAUTORIO) OF ENVIRONMENTAL LAW. One of the guiding principles of Environmental Law is the precautionary principle, or principle of prudent avoidance. This principle is embodied in the United Nations Conference on Environment and Development, or Rio Declaration, which literally states: “Principle 15.- In order to protect the environment, States shall widely apply the precautionary approach according to their capabilities. Where there is a danger of serious and irreversible harm, a lack of absolute scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Within the domestic legal system, the Biodiversity Law (No. 7788 of 30 de abril de 1998), in Article 11, establishes the following principles as interpretive parameters (parámetros hermenéuticos): “1.- Preventive approach (criterio preventivo): It is recognized that anticipating, preventing, and addressing the causes of biodiversity loss or threats thereto is of vital importance. 2.- Precautionary approach, or in dubio pro natura (criterio precautorio o indubio [sic] pro natura): Where there is a danger or threat of serious or imminent harm to components of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason for postponing the adoption of effective protective measures.” In Judgment No. 1250-99 of this Chamber, issued at 11:24 on 19 de febrero de 1999 (reiterated in Judgments Nos. 9773-00 at 9:44 on 3 de noviembre del 2000, 1711-01 at 16:32 on 27 de febrero del 2001, and 6322-03 at 14:14 on 3 de julio del 2003), this Court held as follows: “(...) Prevention seeks to anticipate adverse effects and ensure the protection, conservation, and proper management of resources.

Consequently, the guiding principle of prevention (principio rector de prevención) is founded on the need to take and implement all precautionary measures to avoid or contain possible harm to the environment or human health. Accordingly, where there is a risk of serious or irreversible harm—or doubt in that regard—a precautionary measure must be adopted, including postponement of the activity concerned. This is because, in environmental matters, ex post coercion is ineffective, since, once socially harmful biological consequences have already occurred, punishment may carry moral significance but will scarcely compensate for the environmental damage caused.” Subsequently, in Judgment No. 3480-03 at 14:02 on 2 de mayo del 2003, this Court stated that, “Properly understood, the precautionary principle refers to the adoption of measures not when the facts giving rise to a risk are unknown, but when there is a lack of certainty as to whether those facts will actually cause harmful environmental effects.” In cases such as the one under consideration, the precautionary principle, or in dubio pro natura, means that when there are no studies or reports prepared in accordance with the unequivocal and precisely applicable rules of science and technology that make it possible to reach a state of absolute certainty regarding the harmlessness of the activity intended to be carried out in relation to the environment, or when such studies or reports are mutually contradictory, the entities and bodies of the centralized and decentralized administration must refrain from authorizing, approving, or permitting any new application or application for modification; suspend those already underway until the state of doubt has been resolved; and, concurrently, adopt all measures aimed at environmental protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment.

In essence, sound environmental management requires protecting the resource before it is degraded.” That criterion has been reiterated in numerous rulings; for example, in Judgment No. 2019012579 at 13:20 on 5 de julio de 2019:

“… the precautionary principle, or in dubio pro natura, means that when there are no studies or reports prepared in accordance with the unequivocal and precisely applicable rules of science and technology that make it possible to reach a state of absolute certainty regarding the harmlessness of the activity intended to be carried out in relation to the environment, public entities and bodies must refrain from authorizing, approving, or permitting any new application or application for modification; suspend those already underway until the state of doubt has been resolved; and, concurrently, adopt all measures aimed at environmental protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment (…)”. (See, to the same effect, Judgments Nos. 2019012549 at 13:20 on 5 de julio de 2019 and 2012016866 at 14:30 on 4 de diciembre de 2012, among many others).

Now, upon further consideration, the undersigned justices deem it essential to clarify the concept of the precautionary principle, or in dubio pro natura, in several respects.

First, the preventive principle (principio preventivo) must not be confused with the precautionary principle, since each has particular characteristics that distinguish it from the other, as reflected in Judgment No. 2021024807 at 9:20 on 5 de noviembre de 2021, in which this Chamber explained: “In this connection, specialized scholarship has stated that the preventive principle requires that, where there is certainty concerning possible environmental harm, the harmful activity must be prohibited, limited, or made conditional upon compliance with certain requirements. In general, this principle applies when risks are clearly defined and identified as at least probable; likewise, the principle is useful when there are no technical reports or administrative permits guaranteeing the sustainability of an activity, but sufficient elements exist to anticipate possible adverse impacts. By contrast, the precautionary principle provides that, where there is a danger of serious and irreversible harm, a lack of absolute scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

It follows from the foregoing that this principle proceeds from reasonable scientific uncertainty combined with the threat of serious and irreversible environmental harm. In general terms, a relevant difference between the preventive and precautionary principles lies in the level of knowledge and certainty regarding the risks caused by an activity or project. Under the former, such certainty exists, whereas under the latter there is a state of doubt arising from scientific information or technical studies (…)” (boldface added).

Second, the precautionary principle must be understood precisely as set forth in Principle XV of the Rio Declaration on Environment and Development: “Where there is a danger of serious or irreversible harm, a lack of absolute scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” In other words, this does not entail requiring scientific studies in order to attain “absolute certainty” that an activity will be harmless to the environment (as a matter of principle, complete assurance is scarcely attainable); rather, it means that even if the danger of serious or irreversible environmental harm has not been fully established, such uncertainty must never justify or excuse postponing the implementation of effective measures to prevent environmental degradation. In this regard, it should be noted, on the one hand, that not just any threat will suffice—it must plausibly involve a serious danger—and, on the other, that the measure requires the effective and efficient use of the resources employed.

Accordingly, although the precautionary principle is linked to a certain degree of scientific uncertainty, this does not mean that it may be applied without restriction on the ground that any activity could cause environmental harm, which would undermine its very purpose. Rather, there must be some degree of identification of the dangers of serious or irreversible harm that could arise, the determination of which varies according to the particular circumstances of the specific case. Thus, where a situation requires application of the precautionary principle, public entities and bodies must refrain from authorizing, approving, or permitting any new application or application for modification that reasonably entails a serious risk; they are even required to suspend activities already underway and, concurrently, must efficiently adopt all measures necessary to preserve a healthy and ecologically balanced environment.

The aforementioned principle is likewise embodied in a source of hard law (hard law), since Principle 3 of the United Nations Framework Convention on Climate Change—ratified by Costa Rica through Law No. 7414 of 13 de junio de 1994 and by all OAS Member States—provides:

“3. The Parties should take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects. Where there is a threat of serious or irreversible harm, a lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to address climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To that end, such policies and measures should take into account different socioeconomic contexts, be comprehensive, include all relevant sources, sinks, and reservoirs of greenhouse gases, and encompass all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties” (emphasis added).

The precautionary principle is also provided for in the Stockholm Convention on Persistent Organic Pollutants, which has been ratified by 32 OAS Member States, including Costa Rica—see Law No. 8538 of 23 de agosto de 2006—which states:

“ARTICLE 1 Objective Mindful of the precautionary approach enshrined in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Convention is to protect human health and the environment from persistent organic pollutants (…)”.

Likewise, this principle is contemplated in another instrument of international human rights law, namely the Convention on Biological Diversity, ratified by 34 OAS Member States, including Costa Rica, through Law No. 7416 of 30 de junio de 1994, whose preamble provides: “(…) Noting that it is vital to anticipate, prevent, and address at their source the causes of the reduction or loss of biological diversity. Also noting that where there is a threat of substantial reduction or loss of biological diversity, a lack of unequivocal scientific evidence should not be invoked as a reason for postponing measures intended to avoid or minimize that threat (…)”.

Consistent with the aforementioned legislation in force in the country, the Inter-American Court of Human Rights also addressed the precautionary principle in Advisory Opinion OC 23/17 of 15 de noviembre de 2017:

“180. (…) Therefore, this Court understands that States must act in accordance with the precautionary principle (principio de precaución) to protect the right to life and personal integrity in cases where there are plausible indications that an activity could cause serious and irreversible harm to the environment, even in the absence of scientific certainty. Therefore, States must exercise due caution to prevent possible harm. Indeed, in the context of protecting the rights to life and personal integrity, the Court considers that States must act in accordance with the precautionary principle and must therefore, even in the absence of scientific certainty, adopt measures that are ‘effective’ in preventing serious or irreversible harm” (emphasis added).

Following that decision, in a judgment in Indigenous Communities Members of the Lhaka Honhat (Our Land) Association v. Argentina, the Inter-American Court of Human Rights ruled on 6 de febrero de 2020 as follows: “the right to a healthy environment (derecho a un medio ambiente sano) ‘must be deemed included among the rights [...] protected by Article 26 of the American Convention,’ given the obligation of States to achieve the ‘comprehensive development’ of their peoples, which arises from Articles 30, 31, 33, and 34 of the Charter.” Of particular significance, it must be emphasized that, in this ruling, the Inter-American Court refers to Advisory Opinion No. OC-23/17 for the purpose of developing the content and scope of that right, as a result of which the legal considerations in the latter have logically acquired the legally binding force of a judgment. In this regard, the international court reiterates “that the right to a healthy environment ‘constitutes a universal interest’ and ‘is a fundamental right for the existence of humankind,’ and that ‘as an autonomous right [...] it protects the components of the [...] environment, such as forests, seas, rivers, and others, as legal interests in themselves, even in the absence of certainty or evidence regarding risks to individual persons.

It is a matter of protecting nature,’ not only because of its ‘usefulness’ or ‘effects’ with respect to human beings, ‘but because of its importance to the other living organisms with which the planet is shared.’ The foregoing does not preclude, of course, the possibility that other human rights may be violated as a consequence of environmental harm.” Specifically, in developing the concept of the right to the environment, the Inter-American Court very clearly details States’ obligations in the face of potential environmental harm, such as the duty of prevention (deber de prevención), the precautionary principle, the obligation to cooperate (obligación de cooperación), and access to information (acceso a la información).

In short, application of the precautionary principle means that, where there are indications that a particular activity could plausibly cause serious and irreversible harm to the environment, the lack of absolute scientific certainty or evidence in that regard does not relieve anyone of the obligation to adopt all efficient and effective measures to prevent harm to the environment. By virtue of the theory of Drittwirkung der Grundrechte, this principle extends its guiding function to the conduct of both public-law and private-law legal subjects.

Having clarified the foregoing, and in view of the particular characteristics of Isla San Lucas, it is reiterated that the change in management category (categoría de manejo) effected by the law challenged here inexorably entails environmental and cultural implications, making duly supported scientific criteria essential. In other words, for the modification of the management category assigned to Isla San Lucas—which is not only a protected wildlife area (área silvestre protegida), but is also considered cultural heritage (patrimonio cultural)—to be logical and constitutionally permissible, there must be sufficient technical and scientific justification, particularly because each management category has biological, soil-related, hydrological, physiographic, ecological, climatic, and, in general, environmentally relevant characteristics that give it a distinct specificity.

In view of the foregoing, in the case at bar there is no scientific, objective, and reasonable basis justifying the change in management category of a portion of the land area of the ‘Isla San Lucas’ protected wildlife area, much less any examination of the environmental and cultural consequences of that decision. This is contrary to the precautionary and preventive principles—in environmental and cultural-heritage matters—and to the principle requiring an objective basis for environmental protection (principio de objetivación de la tutela ambiental).

Furthermore, reference should be made to Judgment No. 2013010540, issued at 15:50 on 7 de agosto de 2013, in which this Chamber stated:

“6.4.- Violation of Article 89 of the Political Constitution. This constitutional provision states, insofar as relevant: ‘Among the cultural purposes of the Republic are: to protect natural beauty...’ With respect to this provision, INCOPESCA asserts that it bears no relationship whatsoever to shrimp fishing with trawl nets on the seabed. The petitioners, for their part, maintain that the scenic beauty of the sea is being destroyed and the waters rendered turbid by the onslaught of trawl nets.

The Chamber agrees with the latter assessment. Natural beauty is not limited to the surroundings visible to our eyes, much less to the external surface of the earth. Natural beauty cannot be reduced to an aesthetic concept. As the Chamber has properly emphasized through a substantive and evolving interpretation in its case law, the concept of natural beauty used by the framers of the 1949 Constitution is encompassed by the required protection of the right to a healthy and ecologically balanced environment (derecho a un ambiente sano y ecológicamente equilibrado):

‘XIII.- (…) The term “natural beauty” was the term used when the Constitution was enacted (7 de noviembre de 1949), and what it described has now developed into a specialized field of law: environmental law (derecho ambiental), which recognizes the need to preserve the environment not merely as a cultural purpose, but as a vital necessity for every human being. In this regard, the concept of the right to a healthy environment goes beyond recreational or cultural interests, which are also important aspects of life in society, and also constitutes an essential requirement for life itself (...) (Judgment 9193-2000, issued at 16:28 on 17 de octubre de 2000).

The concept of natural beauty is closely related to the concept of natural heritage (patrimonio natural). It is no coincidence that the provision refers to historical and artistic heritage, so that it regulates three types of heritage that are essential to preserving a nation’s identity and its physical, cultural, and social survival. Hydrobiological resources (recursos hidrobiológicos) are included within the concept of natural beauty. Protecting natural beauty includes safeguarding the environment and ecosystems because, if the latter are destroyed or severely damaged, the former are inevitably harmed. The concept of natural beauty is closely linked to a sustainable development model (modelo de desarrollo sostenible) that respects natural resources and our natural heritage. The purpose of the provision is to protect, conserve, and develop these three forms of heritage and to subject private enterprise to that constitutional purpose.

In view of the foregoing, contrary to INCOPESCA’s position in its report, the deterioration of marine ecosystems caused by trawling, so long as devices for reducing incidental catch (Bycatch Reduction Devices) that significantly reduce incidental catch are unavailable—not all have the same effectiveness, and devices that save turtles alone are insufficient—directly violates the natural heritage protected in Article 69 through the concept of natural beauty’” (emphasis added).

In the case at bar, the foregoing means that, in the absence of the aforementioned scientific studies, changing the management category of a portion of the land area of Isla San Lucas also violates Article 89 of the Magna Carta, because that modification affects a protected wildlife area whose constitutional protection extends to the obligation to safeguard natural beauty, including against threats and through application of the in dubio pro natura principle, as well as to preserve cultural heritage, in accordance with constitutional case law, a term encompassing various types of heritage, such as historical and architectural heritage.

Based on the foregoing, in the case at bar, we, the undersigned justices, consider that the absence of environmental scientific studies conducted before changing the management category of part of the ‘Isla San Lucas’ protected wildlife area contravenes the precautionary and preventive principles—in environmental and cultural-heritage matters—and the principle requiring an objective basis for environmental protection, and also infringes the fundamental rights set forth in Articles 50 and 89 of the Political Constitution.

IV.On the alleged unconstitutionality of Law No. 9892 of 24 de agosto de 2020 for reducing the area of the ‘Isla San Lucas’ protected wildlife area without prior scientific studies.

Of importance to resolving this claim is the fact that Executive Decree No. 34282-TUR-MINAE-C of 25 de enero de 2008, ‘Corrects, Delimits, and Expands the Boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas and Declares the Sustainable Tourism Development of the Island to Be of National Interest and High Priority,’ modified the boundaries of the Refugio Nacional de Vida Silvestre San Lucas. In this regard, Article 1 provided:

“Article 1.—Article 1 of Executive Decree No. 33327-MINAE, published in La Gaceta No. 172 of 17 de septiembre de 2006, is hereby amended to read as follows:

Article 1.—The boundaries of the State-owned Refugio Nacional de Vida Silvestre Isla San Lucas, declared by Executive Decree No. 29277-MINAE, published in La Gaceta No. 30 of lunes 12 de febrero del 2001, and amended by Executive Decree No. 32349-MINAE, published in La Gaceta No. 92 of viernes 13 de mayo del 2005, are hereby corrected, delimited, and expanded to read henceforth as follows: A. The land portion consisting of Isla San Lucas, located in the Golfo de Nicoya, on the IGN cartographic sheet entitled Golfo, edition 3-IGNCR, situated between the geographic coordinates of north latitude 9° 55’ 55” - 9 57’ 20” and west longitude 84° 53’ 23”, with an area of 462 ha. The boundaries of the insular land portion are corrected by excluding the area encompassed by the following Lambert Costa Rica North coordinates (…) In the water sector off Playa Cocos, the boundaries are corrected by excluding the area encompassed by the following Lambert Costa Rica North coordinates: (…) In the water sector off Playa Cocos, the boundaries are corrected by excluding the area encompassed by the following Lambert Costa Rica North coordinates: (…) A water portion described by the following Costa Rica Lambert North coordinates is hereby added to the Refugio Nacional de Vida Silvestre Isla San Lucas: B. A marine-coastal area (área marino-costera) consisting of the waters surrounding Isla San Lucas to a depth of 6 m (…)” (boldface added).

Specifically, with respect to this regulatory instrument and the addition it makes, in Judgment No. 2010013099, issued at 14:46 on 4 de agosto de 2010, this Chamber clarified that:

“(…) the Executive Branch may not reduce these (sic) areas without following the legislative and technical procedure, for which reason the Chamber partially grants the action and annuls Article 1 solely insofar as it excludes from the protected area (área protegida) of the Refugio Nacional de Vida Silvestre Isla San Lucas the ‘5.5% of the current area for the protection of cultural heritage,’ due to the violation of Articles 11, 50, and 89 of the Constitution, but not insofar as it adds the marine sector and islets, since the Executive Branch is permitted to do so by Executive Decree” (emphasis added). Accordingly, the aforementioned decision ordered: “(…) The action is partially GRANTED. Consequently, Article 1 of Executive Decree No. 34282-TUR-MINAET-C (sic) of January 25, 2008, published in Supplement 10 to La Gaceta No. 28 of February 8, 2008, is annulled as unconstitutional, solely insofar as it amends subsection A of Article 1 of Executive Decree No. 33327-MINAE, except for the addition of the portion of water incorporated into the Refugio Nacional de Vida Silvestre Isla San Lucas and section B, which remain in force (…)”.

Thus, the boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas were expanded by Article 1 cited ut supra with respect to the portion of water and the addition of a “marine-coastal area (área marino-costera) consisting of the waters around Isla San Lucas to a depth of 6 m,” which remained undisturbed by the judgment transcribed above.

In the sub lite, the challenged Law No. 9892 provides:

“ARTICLE 3—Boundaries. Parque Nacional Isla San Lucas shall consist of a land portion and a coastal marine area (área marina costera).

The land portion shall consist of the insular portion of Isla San Lucas, located in the Golfo de Nicoya, on the Instituto Geográfico Nacional map sheet entitled Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an area of four hundred sixty-two hectares (462 ha).

The coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m). Within the foregoing two areas, there shall be a differentiated management area (espacio de manejo diferenciado) devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be known as the Zona turística (…)” (emphasis added).

In light of the foregoing, it is beyond dispute that, upon enactment of the aforementioned law, a portion of Isla San Lucas was reclassified from the ‘national wildlife refuge’ management category (categoría de manejo) to that of ‘national park.’ In this regard, as indicated ut supra, a geographic area, generally a large one, may be declared a protected wild area (área silvestre protegida), with different management-plan categories (categorías de plan de manejo) coexisting within it; their determination will necessarily require prior scientific studies.

Although Article 1 of Law No. 9892 created Parque Nacional Isla San Lucas, it is equally true that it did not abolish the Refugio Nacional de Vida Silvestre Isla San Lucas, because Executive Decrees Nos. 29277-MINAE of January 11, 2001, and 34282-TUR-MINAE-C of January 25, 2008, remain in force, which means that two different management categories coexist in that geographic zone (the entire protected wild area). Consequently, contrary to the applicants’ claim, in the sub examine it does not appear that any portion of the island’s coastal marine area or the Pan de Azúcar islet has been left entirely unprotected, since those areas remain a protected wild area under the national wildlife refuge category.

Notwithstanding the foregoing, the legal analysis set forth in the preceding section is again applicable here. Thus, pursuant to the precautionary principle (principio precautorio), the preventive principle (principio preventivo)—in environmental and cultural-heritage matters—and the principle requiring objective grounds for environmental protection (principio de objetivación de la tutela ambiental), scientific studies are required before declaring, modifying, or changing the management category of the ‘Isla San Lucas’ protected wild area, in order to verify that the measure to be adopted will not cause direct or indirect harm to a sound balance between the environment and cultural heritage.

Specifically, in the sub iudice, even the minimum scientific and environmental basis needed to support the designation of the new boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas is lacking; those boundaries, it bears repeating, were drastically reduced. Nor are there scientific studies explaining why one portion of the island’s surface remains under the national wildlife refuge management category while the other was reclassified as a national park. This is even more serious because, as indicated ut supra, i) that decision has environmental implications for a protected wild area, particularly because the characteristics (biological, edaphic, hydrological, physiographic, ecological, climatic, and others of a similar nature) of the management categories at issue require different regulations and measures for each; and ii) it could have adverse effects on the island’s cultural heritage.

Ergo, Article 3 of Law No. 9892 is also unconstitutional because it violates the precautionary and preventive principles—in environmental and cultural-heritage matters—and the principle requiring objective grounds for environmental protection, as well as the fundamental rights established in Articles 50 and 89 of the Constitución Política, given the absence of scientific studies justifying the reduction of the boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas.

V.Regarding the alleged unconstitutionality of Law No. 9892 of August 24, 2020, for establishing commercial and tourism purposes disguised as sustainable objectives in the fragmentation of the protected wild area, despite the absence of prior technical studies.

First, the provisions of Law No. 9892 must be emphasized:

“ARTICLE 1—Creation. Parque Nacional Isla San Lucas is hereby created. In addition to its status as a protected wild area, it shall constitute historical and architectural heritage and a sustainable tourism-use zone (zona de aprovechamiento turístico sostenible) in the specific areas designated in this Law.

ARTICLE 2—National interest. The island’s sustainable tourism development, under the terms of this Law, and the conservation and restoration of the buildings of the former Isla San Lucas penitentiary are hereby declared to be matters of national interest and high priority. Within the applicable legal framework, agencies of the Public Administration and the private sector may contribute financial resources, to the extent of their capabilities and without prejudice to the fulfillment of their own objectives, to support the island’s sustainable tourism development.

ARTICLE 3—Boundaries. Parque Nacional Isla San Lucas shall consist of a land portion and a coastal marine area.

The land portion shall consist of the insular portion of Isla San Lucas, located in the Golfo de Nicoya, on the Instituto Geográfico Nacional map sheet entitled Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an area of four hundred sixty-two hectares (462 ha).

The coastal marine area shall consist of the waters surrounding the island, to a depth of up to three meters (3 m). Within the foregoing two areas, there shall be a differentiated management area devoted to sustainable tourism activities and to the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be known as the Zona turística.

ARTICLE 4—Purposes. The purposes of Parque Nacional Isla San Lucas are as follows:

• a)The preservation of natural, historical, cultural, archaeological, and architectural heritage.
• b)To contribute to the socioeconomic development of the Golfo de Nicoya.
• c)The promotion of sustainable and inclusive tourism to serve domestic and foreign visitors.
• d)The enjoyment, recreation, and provision of facilities and amenities for inclusive tourist visitation (…)

ARTICLE 6—Zona turística. The areas corresponding to the buildings of the former San Lucas penitentiary, including the pier, as well as the marine and land access areas to the island, the parcels, trails, and designated beach areas, shall be subject to the status of Zona turística. Those areas are specified by the following coordinates:

• a)Area designated Zona histórica: site where the buildings of the former San Lucas penitentiary are located, coordinates in the CRTM05 projection: (…)

Area of the polygon designated “Área de edificaciones”: 265664.59 1 m2, equivalent to 26ha5664, equivalent to 0.27km2 b) Playa El Coco recreation area: bounded by the following coordinates in the CRTM05 projection: (…)

Area of the polygon designated “Área de recreo playa El Coco”: 76401.99, equivalent to 7ha6401, equivalent to 0.08km2 c) Sector designated Área de senderos: bounded by the following coordinates in the CRTM05 projection (…)

Area of the polygon designated “Área de senderos”: 314277.731 m2, equivalent to 31 ha4277, equivalent to 0.31 km2 d) Area designated Sector de agua: bounded by the following coordinates in the CRTM05 projection (…)

Area of the polygon designated “Sector de agua” 746209.m2, equivalent to 74ha6209, equivalent to 0.75 km2.

ARTICLE 7—Scope and restrictions. Parque Nacional Isla San Lucas shall be governed by a master plan (plan maestro) prepared on the basis of technical criteria.

To fulfill the purposes established in this Law, concessions (concesiones) and permits (permisos) may be granted in the Zona turística for activities and facilities other than park services. Lodging and gambling services shall not be permitted in this zone.

In all cases, the participation of local organizations in the granting of concessions shall be promoted.

Any jurisdictional conflict (conflicto de competencias) shall be resolved by the Minister of Ambiente y Energía (…)

ARTICLE 9—Duties and powers. The Junta Directiva del Parque Nacional Isla San Lucas shall have the following powers:

• a)To define strategies and policies aimed at the consolidation and development of the park.
• b)To contribute to the environmental protection and conservation of the national park.
• c)To establish guidelines for the protection, restoration, and administration of the historic buildings; to develop facilities and services for visitors’ rest and recreation; to enable and ensure accessibility of land and maritime routes and port facilities; and, in general, to provide all basic services.
• d)To define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visitation to the island.
• e)To approve the strategic objectives for the marketing and promotion needed to publicize Parque Nacional Isla San Lucas both domestically and internationally.
• f)To approve authorizations (autorizaciones), use permits (permisos de uso), and concessions for the performance of works and provision of services in the Zona turística.

For works involving areas declared to be heritage sites, coordination with the Ministerio de Cultura shall be required.

• g)To approve the Parque Nacional master plan, as well as the corresponding programs, plans, and budgets.
• h)To approve the administrative structure required for the institutional management of the park.
• i)Approve, renew, amend, or revoke any trust (fideicomiso) relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and persons. It shall determine admission prices for the national park and approve contracts for the various reservation and purchasing systems.
• j)Approve the use of public-works concessions involving public services and mutually beneficial contracting with nonprofit entities.
• k)Carry out any other action necessary to ensure the proper operation of Parque Nacional Isla San Lucas and the achievement of its purposes.

With regard to the conservation and preservation of historical and architectural heritage, the determination of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail, and for the protection of wildlife and conservation of the island’s biodiversity, the technical determination of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail. At the request of the Board of Directors (Junta Directiva), those entities shall provide their determinations as expeditiously as possible (…)

ARTICLE 14—Trust Administration Commission and its duties. The Trust Administration Commission (Comisión Administradora del Fideicomiso) shall appoint from among its members a president, a vice president, and a secretary. All members of this commission shall serve without compensation.

The duties of this commission shall include the following:

• a)Perform all work or tasks entrusted to it by the settlor (fideicomitente) and established in the trust agreement.
• b)Coordinate with the Junta Directiva del Parque Nacional Isla San Lucas and follow its general guidelines to ensure the proper operation and performance of the trust.
• c)Approve the manuals concerning the administration, management, oversight, and other matters relating to the trust.
• d)Review and approve the trust’s ordinary and extraordinary budgets annually.
• e)Instruct the trustee (fiduciario) regarding the actions required within the scope of the trust’s operations.
• f)Meet in ordinary session at least once a month and in extraordinary session whenever convened by the President of the Board or the trustee’s representative.
• g)Approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and nonessential services, to make the best use of the Tourist Zone and enhance visitors’ enjoyment.
• h)Perform the duties assigned to it by the trust agreement concerning internal control, oversight, procurement, personnel, and other matters necessary for the administration of the national park.
• i)Perform any other duty arising from the trust agreement, its manuals, or other directly related matters (…)

ARTICLE 16—Infrastructure development. Parque Nacional Isla San Lucas may develop all infrastructure necessary to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, berthing facilities, food services, access routes, and information and communication in various formats, as well as any infrastructure it deems appropriate for the benefit of visitors and to ensure the enjoyment and appreciation of the park’s historical, architectural, and natural wealth.

For the construction of docks, berthing facilities, and other maritime facilities, the Instituto Costarricense de Puertos del Pacífico (lncop), the Ministerio de Obras Públicas y Transportes (MOPT), and the Instituto Costarricense de Turismo (ICT) shall provide the corresponding technical support to the Board of Directors; these institutions are also authorized to construct and maintain the works specified in this provision” (emphasis added).

• A)Regarding the declaration that sustainable tourism development on Isla San Lucas is of national interest and a high priority, as well as the development of infrastructure to facilitate it, including docks and berthing facilities.

It should be noted that tourism on Isla San Lucas had previously been regulated by the aforementioned law no. 5469, which provided:

“Article 2.—The Municipality shall use the Island as a tourist center and is therefore authorized to contract for the necessary infrastructure works (…)

Article 4.—Hotels and all activities inherent to a well-organized tourism operation may operate on the Island for the purposes of this law.” Subsequently, executive decree no. 34282, ‘Corrects, Delimits, and Expands the Boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas and Declares the Sustainable Tourism Development of the Island to Be of National Interest and a High Priority,’ provided:

“Article 2—The sustainable tourism development of the island under the terms of this decree, as well as the conservation and restoration of the former prison buildings on Isla San Lucas, is hereby declared to be of national interest and a high priority. Agencies of the Public Administration and the Private Sector, within the respective legal framework, may contribute financial resources to the extent possible and without prejudice to the fulfillment of their own objectives, in order to support the sustainable tourism development of the Island (…)

Article 4—The following shall be prohibited within the Municipal Administration Area:

• 1)The supply of fuels and their derivatives, in order to prevent environmental pollution.
• 2)The use of water for tourism activities in violation of the technical standards issued by the Departamento de Aguas del Minae in collaboration with the Instituto Costarricense de Acueductos y Alcantarillados, if required, so as to preserve the environmental flow (caudal ecológico) necessary to sustain the island’s ecosystem.
• 3)The use of Cultural Heritage in violation of the technical standards issued by the Ministerio de Cultura, Juventud y Deportes.
• 4)Fishing and hunting.
• 5)Any other restrictions established by the Comisión Permanente in accordance with the relevant technical studies.

Article 5—For the development of tourism activities within the municipal administration area and the preservation of the island’s cultural heritage, the ICT shall prepare a Sustainable Tourism Development Master Plan (Plan Maestro de Desarrollo Turístico Sostenible), which shall include an environmental impact analysis (análisis del impacto ambiental) and the technical standards necessary to achieve the objectives of economic, social, and environmental development, as well as the protection of cultural heritage in that specific area. The Sustainable Tourism Development Master Plan shall contain at least the following elements:

• a)A zoning study (estudio de zonificación) defining land uses.
• b)Zoning regulations (Reglamento de zonificación) (ordinances and regulations) defining and establishing the criteria and standards governing land use, construction and use of buildings, facilities, public utilities, buffer zones, among other matters, necessary for limited and sustainable tourism development and for the protection of the Island’s cultural heritage.
• c)A strategic plan for project implementation, establishing the programs, projects, and activities to be undertaken through both private initiative and public investment in pursuit of sustainable development and the protection of cultural heritage.

The Sustainable Tourism Development Master Plan shall be submitted to the Secretaría Técnica Nacional Ambiental del Minae and the Ministerio de Cultura, Juventud y Deportes for approval, in accordance with the requirements and procedures established by the legal system.

The municipal administration area shall be governed by the aforementioned Sustainable Tourism Development Master Plan and shall not be subject to the Refuge Management Plan (Plan de Manejo del Refugio), except for the relevant general legal rules. MINAE shall modify its Management Plan in accordance with the refuge’s new dimensions and the Sustainable Tourism Development Master Plan (…)”.

Specifically, in judgment no. 2010013099 issued at 14:56 on August 4, 2010, this Chamber ruled on a constitutional challenge (acción de inconstitucionalidad) to that decree as follows:

“IX.—On the implications of sustainable development and tourism.—The cornerstone of development is environmental sustainability, whose objective is to protect and conserve the environment and its natural resources in balance with economic diversification and the improvement of human quality of life. The core principle of environmental law lies in the rational use of natural resources, together with environmental protection, to ensure sustainability for present and future generations. Every economic or productive activity that affects or uses the environment must adhere to the philosophy of sustainable development according to its environmental impact; in that regard, because the Executive Branch relies on such objectives for economic and social development, this Chamber finds that rural tourism as such must uphold those values protecting sustainable development, since it cannot be an exception, and controlling the effects it may have on the environment is constitutionally significant.

One example is the Certification for Tourism Sustainability (Certificación para la Sostenibilidad Turística) issued by the Instituto Costarricense de Turismo, which is an extremely important component demonstrating progress in protecting the right to a healthy and ecologically balanced environment while promoting economic diversity; this measure creates incentives for companies engaged in the tourism-based use of natural and cultural resources. Furthermore, Ley No. 8724, which is the Ley de Fomento del Turismo Rural Comunitario, seeks to benefit families and communities by using their localities as tourist destinations, and its provisions include Article 2(a), which states: “Make optimal use of environmental resources, which are a fundamental element of tourism development, maintaining essential ecological processes and helping to conserve natural resources and biological diversity.” In this regard, the Código Ético Mundial para el Turismo, adopted through resolution A/RES/406(XIII) of the thirteenth General Assembly of the OMT in Santiago de Chile, from December 27 to October 1, 1999, and adopted by the United Nations General Assembly in resolution A/RES/56/212 of December 21, 2001, provides:

“Article 3.

Tourism, a factor of sustainable development 1. All stakeholders in tourism development have a duty to safeguard the environment and natural resources with a view to sound, continuous, and sustainable economic growth capable of equitably satisfying the needs and aspirations of present and future generations.

2. National, regional, and local public authorities shall favor and encourage all forms of tourism development that conserve scarce and valuable natural resources, particularly water and energy, and avoid waste generation to the extent possible.

(…)

4. Tourism infrastructure shall be designed and tourism activities planned so as to protect the natural heritage comprising ecosystems and biological diversity and to preserve endangered species of wild fauna and flora. Stakeholders in tourism development, particularly industry professionals, must accept the imposition of limitations on their activities when those activities (sic) are carried out in particularly vulnerable areas: desert, polar, or high-mountain regions, coastal areas, tropical forests, or wetlands suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and value-enhancing forms of tourism, provided that they respect the natural heritage and the local population and conform to the carrying capacity (capacidad de ocupación) of tourist sites.” To ensure equitable access to development, the traditional idea that development occurs only in urban areas must be abandoned, since other factors that make a place unique may be utilized in rural areas, while ensuring, of course, that those conditions are not threatened. There is no doubt that the use of natural resources entails economic diversification; accordingly, the environment requires protection so that it can withstand the burdens of human intervention. It is therefore necessary to ensure reasonable development in balance with the environment, such that the degree of control exercised would increase according to the potential impact upon it.

Consequently, tourism development must not entail the destruction of public-domain property (bienes del dominio público) or the surrounding environment, because it depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability. Among the State’s constitutional purposes is the development of policies that reduce social and economic disparities, adapted, of course, to natural, rural, or mixed environments; all of this arises from the provisions of Article 50 of the Constitution. Access to development in terms of employment opportunities or quality of life, and therefore economic progress, forms part of the recognition and advancement of human rights. Thus, rural development through tourism must not require individuals to abandon their customs and traditional ways of life in order to migrate to cities, but rather to adapt them to current needs and advances.

In this regard, in the Chamber’s view, humanity’s true challenge is to generate progress and—why not—happiness, both material and spiritual, without threatening the resources available in the environment; the opposite would simply result in social inequalities that prevent progress toward a new stage of human development. The Chamber recognizes that the balance between the two is extremely delicate, but in order to achieve it without degrading the environment, science and technology must be used to determine the burdens that particular natural environments and their resources can withstand without violating the rights of present and future generations. For all these reasons, the conflict between environmental protection and other rights derived from it, which are broadly recognized in international human rights instruments, warrants these observations by this Constitutional Court. This Chamber considers that rural development based on tourism involving natural and cultural heritage is constitutionally legitimate as long as it is sustainable.

Hence, if science and technology recommend imposing certain restrictions on the number or size of visitor groups, during particular seasons, etc., such restrictions could not be deemed unconstitutional, since they are based on sustainability criteria, without disregarding the various international provisions safeguarding the right to enhance the value of assets belonging to national history, not only as national heritage assets but as the heritage of all humanity; restricting public access to them is not legitimate (…)

A form of rural tourism with a low ecological impact and in compliance with environmental regulations is compatible with the Law of the Constitution, which encompasses the international obligations extensively developed in the Chamber’s precedents—to which this Chamber refers—and with Article 89 of the Constitución Política, which establishes cultural objectives that include protecting natural beauty and preserving and developing historical heritage, whose value is enhanced by the access that the public may have to it. Accordingly, no incompatibility has been demonstrated between environmental protection and the preservation of cultural assets made available to humanity, on the one hand, and a project that must be developed in full integration with the environment and must encompass all its components without excluding any of them, on the other (…)

Infrastructure development must be compatible with the principles of environmental sustainability and with environmental protection and conservation. Conversely, construction projects that failed to take account of the protection regimes in force on the Island, such as the construction of major infrastructure works, would be constitutionally questionable, since the continued application of the protected-area regime would entail a substantial change in land use (uso de suelo), unlike human-made structures that existed long before the Island was declared an Área Silvestre Protegida and historical-architectural heritage site. The Chamber therefore does not find that Articles 2, 3, 4, 6, and 7 of Decreto Ejecutivo 34282-TUR-MINAET-C (sic) contain constitutional defects, subject, however, to the following qualifications. The declaration under paragraph 2 that sustainable tourism development is in the national interest and a high priority must be understood as constitutional insofar as the conservation and restoration of the buildings of the former prison and those constructed in connection with its existence are limited to activities involving the conservation, protection, and improvement of their surroundings.

The same must apply to the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies to which they must be subjected. As for infrastructure intended for tourist use, it (sic) must be strictly limited to the areas of the historical complex, the road leading to Playa Cocos, and Playa Cocos itself. The facilities to be constructed must be strictly necessary to meet the basic needs of visitors and tourism-development stakeholders, without this permitting any extension beyond developments compatible with a “green” philosophy or out of alignment with the site’s carrying capacity; all of this must be ensured sustainably in accordance with science and technology. This Court recognizes that preserving and restoring the Island’s buildings and enhancing their value constitute a genuine challenge, including—for example—the wooden houses located in the place known as “Las Jachas” and its surroundings, the Enfermería, the Capilla, the Edificio de Administración, and other infrastructure necessary to provide limited nature-tourism and ecotourism services, provided that sustainability criteria are observed; otherwise, this would create a conflict of constitutional significance with Articles 50 and 89.

Subparagraphs a) and b) of paragraph 5 must be understood as constitutional insofar as the objectives of the Plan Maestro comply with what this Chamber has stated, particularly to the extent that the zoning studies and zoning regulations are not based on a 5.5% reduction of the protected wildlife area (área silvestre protegida)” (emphasis added).

Thus, in that judgment, the Chamber ruled on tourism activity on Isla San Lucas, analyzing the constitutionality of decreto ejecutivo nro. 34282, which declared the sustainable tourism development of Refugio Nacional de Vida Silvestre Isla San Lucas to be in the national interest and a high priority, in accordance with a Plan Maestro de Desarrollo Sostenible. In this regard, it was ordered that the plan include an environmental impact analysis (análisis del impacto ambiental) and the technical standards required to meet economic, social, and environmental development objectives, and that it be submitted to Secretaría Técnica Nacional Ambiental and Ministerio de Cultura, Juventud y Deporte for approval. On this point, this Chamber held that tourism involving natural and cultural heritage was constitutionally valid provided that it was sustainable, for which purpose scientific studies determining whether tourism activity was appropriate were indispensable.

Specifically, for sustainable tourism activities and the development of the infrastructure required for such purposes in Parque Nacional Isla San Lucas to be compatible with the right to a healthy and ecologically balanced environment, scientific studies must necessarily be available under the terms set forth ut supra so as to comply with the principle of objective grounding of environmental protection (principio de objetivación de la tutela ambiental). Such studies must be conducted in advance and must be sufficient and individualized, so as to provide reasonable assurance that the environment will neither be harmed nor endangered.

In this particular case, there is no evidence that, prior to declaring sustainable tourism development in Parque Nacional Isla San Lucas to be in the national interest and a high priority, or prior to authorizing the development of infrastructure to facilitate it—including the construction of docks and landing facilities—scientific studies had supported a determination that such activities were consistent with the purposes of that protected wildlife area, particularly considering that national parks constitute categories of absolute protection.

It should also be noted that, although Article 7 of ley nro. 9892 provides for the existence of a plan maestro by stating that: “Parque Nacional Isla San Lucas shall be governed by a plan maestro prepared on the basis of technical criteria (…)”, it does not appear that this includes an environmental impact analysis intended to determine whether the activities to be conducted in the aforementioned national park may harm the environment. Furthermore, pursuant to Article 9 eiusdem, that plan maestro must be approved by Junta Directiva del Parque Nacional Isla San Lucas, whose membership includes no technically appointed members with expertise in environmental matters—a matter we will address in section VI of this dissenting opinion (voto salvado)—and which, although required to respect the technical opinion issued by SINAC on biodiversity-conservation matters, is not required to request such an opinion under the terms established in Article 9 of the challenged law.

It should be recalled that, in Refugio Nacional de Vida Silvestre Isla San Lucas, pursuant to decreto ejecutivo nro. 34282, Instituto Costarricense de Turismo must prepare a Plan Maestro de Desarrollo Turístico Sostenible encompassing an environmental impact analysis and the technical standards necessary to achieve economic, social, and environmental development objectives, as well as the protection of cultural heritage, and that plan must be submitted to both Secretaría Técnica Nacional Ambiental and Ministerio de Cultura, Juventud y Deportes for approval.

Having clarified this, we find a violation of the principles of progressivity and non-regression in environmental matters (principios de progresividad y de no regresión en materia ambiental), because the area of Isla San Lucas, which went from being a wildlife refuge (refugio de vida silvestre) to a national park by virtue of the challenged amendment, was previously governed by the Plan Maestro de Desarrollo Turístico Sostenible del Refugio Nacional de Vida Silvestre Isla San Lucas, which, as indicated ut supra, does require an environmental impact assessment (análisis de impacto ambiental), whose approval rests with the Secretaría Técnica Nacional Ambiental—technical body for environmental matters—and the Ministerio de Cultura, Juventud y Deporte. Under the challenged regulations, that geographical area, upon becoming part of Parque Nacional Isla San Lucas, is governed solely by a master plan, for which there is no express requirement to conduct environmental impact studies or to submit its approval to a technical body for environmental matters. This reduction in the level of environmental progress violates the principles of progressivity and non-regression in environmental matters.

In addition to the foregoing, in the sub examine we find a violation of the precautionary principle (principio precautorio), because, by virtue of the change in management category (cambio de categoría de manejo) for part of the ‘Isla San Lucas’ protected wildlife area (área silvestre protegida), general authorization is created for more intensive tourism activities to be carried out in that area, thereby increasing the risk of serious environmental harm, as explained below. For example, section 7 of law no. 9892 provides general authorization for concessions and permits to be granted in the tourism zone of Parque Nacional Isla San Lucas for activities and facilities other than park services, lodging services, and gambling. Additionally, section 9 eiusdem provides that the Park’s Board of Directors has, among other powers, the following: “d) To define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island (…) f) To approve authorizations, use permits, and concessions for carrying out works and providing services in the Tourism Zone (…)”.

Article 14 of the challenged law, in turn, includes among the duties assigned to the Trust Administration Commission: “g) To approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, in order to maximize the use of the Tourism Zone and visitors’ enjoyment thereof.” In this manner, law no. 9892 provides general authorization for the development of various types of tourism activities, including commercial, sporting, artistic, cultural, and transportation-related activities, which could cause serious or irreversible harm to the environment and cultural heritage. Nevertheless, it failed to provide for a precautionary measure as elementary and basic as a prior scientific study that would supply, at a minimum, data such as the tourist carrying capacities that this protected wildlife area can withstand in light of its characteristics and conservation purposes, so that harm to the environment and cultural heritage could be prevented.

This is so even though this Constitutional Court has emphasized the importance of scientific criteria in determining whether tourism activities that may infringe the right to a healthy and ecologically balanced environment are permissible. In this regard, it should be recalled that the aforementioned judgment no. 2010013099 at 14:56 horas del 4 de agosto de 2010 held: “This Chamber considers that rural development based on tourism centered on natural and cultural heritage is constitutionally legitimate so long as it is sustainable. Hence, if science and technology recommend imposing certain limits on the numbers of groups of visitors, during certain periods, etc., such limits could not be deemed unconstitutional, because they are based on sustainability criteria, without thereby diminishing the various international provisions safeguarding the right to enhance the value of those assets that form part of national history, not only as national heritage assets, but also as assets of all humanity, and restricting them to local populations is not legitimate.” The foregoing likewise entails a violation of the principles of progressivity and non-regression in environmental matters, the principle of objective grounding of environmental protection (principio de objetivación de la tutela ambiental), and the fundamental rights provided for in sections 50 and 89 of the Constitución Política. Consequently, articles 2, 4 subsections c) and d), 7, 9 subsections d), f), and g), 14 subsection g), and 16 of law no. 9892 are found unconstitutional.

• B)Regarding the delimitation of the tourism zone established in articles 3 and 6 of law no. 9892.

In the sub examine, the claimants allege that sections 3 and 6 of law no. 9892 established a differentiated-management tourism zone despite the absence of studies justifying its creation.

On this point, it should be recalled that section 3 of law no. 9892 provides that within the terrestrial and marine portion of Parque Nacional Isla San Lucas “there shall be a differentiated-management area dedicated to sustainable tourism, and to the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be known as the Tourism Zone.” Section 6 eiusdem, in turn, specifies the areas comprising that tourism zone, providing that: “The areas corresponding to the buildings of the former presidio San Lucas, including the pier, as well as the marine and terrestrial access area to the island, the parcels, trails, and beach areas indicated, shall be designated as a Tourism Zone. These areas are specified by the following coordinates (…)”.

In this regard, it should be noted that, in official letter no. SINAC-DE-1338 del 4 de agosto de 2019, the Sistema Nacional de Áreas de Conservación referred to the then-pending bill no. 21287, which culminated in law no. 9892, and stated: “For a tourism zone to be declared, a series of technical studies supporting the establishment thereof (sic) must be submitted, because such activity must have a low impact, be highly sustainable, and be strategically located in places that do not endanger the EFM prioritized by the PGM of the ASP. It should be noted that, for defining this type of zoning, SINAC has created and formally adopted specific instruments that provide methodological guidance for defining this type of zoning in the country’s ASPs.” Similarly, the Ministerio de Ambiente y Energía issued an opinion concerning the aforementioned bill, as reflected in official letter no. DM-1216-2019 del 27 de noviembre de 2019, which states: “Article 6 proposes that all ASP zoning be the result of the technical analysis conducted under the General Management Plan, which is a planning instrument that guides the management of the ASP toward fulfillment of its objectives. We suggest that the definition of the tourism zone be based on the findings of the subsequent technical studies conducted under the General Management Plan” (boldface in the original).

Now, although the legislature’s intention in adopting those provisions may have been to confine the tourism zone in question to a specific area of the island—not to deprive it of its existing environmental protection, but to delimit the specific area in which sustainable tourism activities may be conducted—in the sub lite there is no indication that technical factors (such as the area’s biological, soil-related, hydrological, physiographic, ecological, and climatic characteristics and other features, as well as historical and architectural factors) were taken into consideration when delimiting that zone, for the purpose of scientifically determining whether it was appropriate in relation to environmental and cultural-heritage protection. This is even more serious considering that, under the aforementioned article 3, the tourism zone constitutes a differentiated-management area in which, given the absence of the studies mentioned above, there is no certainty that the preservation and conservation of natural and cultural resources are the primary objectives.

Accordingly, we, the undersigned justices, consider that the sub lite reveals a violation of the principle of objective grounding of environmental protection by creating a tourism zone within Parque Nacional Isla San Lucas and defining its boundaries without any scientific study. This also violates the precautionary and preventive principles (principios precautorio y preventivo)—in environmental and cultural matters—and the fundamental rights contained in articles 50 and 89 of the Constitución Política; consequently, sections 3 and 6 of law no. 9892 are unconstitutional.

• C)Regarding the commercial purposes provided for in sections 9 and 14 of law no. 9892.

Regarding this claim, it should be recalled that the claimants maintain that law no. 9892 permits commercial purposes, which is incompatible with the regulations governing national parks.

Indeed, we find that sections 9 and 14 of the challenged law refer to commercial activities. Under the first of those provisions, the Board of Directors of Parque Nacional Isla San Lucas has, among its powers, the following: “d) To define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island.” Under article 14, in turn, the Trust Administration Commission is responsible for: “g) Approving agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, in order to maximize the use of the Tourism Zone and visitors’ enjoyment thereof.” On this matter, article 3 of the ‘Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America’ provides that the resources existing in national parks shall not be exploited for commercial purposes and that the Contracting Governments agree only to provide those protected wildlife areas “with facilities for public recreation and education.” With respect to national parks, the Ley del Servicio Nacional de Parques unequivocally states that visitors to those protected wildlife areas are prohibited from “15) Engaging in any type of commercial, agricultural, or industrial activity.” By virtue of the foregoing, it is relevant to refer to judgment no. 2012013367 at 11:33 horas del 21 de setiembre de 2012, in which this Constitutional Court addressed the principles of progressivity and non-regression in environmental matters:

“V. On the principles of progressive realization and non-regression in environmental protection. The principle of progressive realization of human rights has been recognized by International Human Rights Law; among other international instruments, it is enshrined in Article 2 of the International Covenant on Economic, Social and Cultural Rights, Articles 1 and 26 of the American Convention on Human Rights, and Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. Under these provisions, the State assumes the obligation to increase, to the extent permitted by its capabilities and development, the levels of human-rights protection, with special consideration for those rights which, like the right to the environment (Art. 11 of the Protocol), require multiple affirmative actions by the State for their protection and full enjoyment by all rights holders.

The principle of non-regression, or the irreversibility of benefits or protection already attained, derives from the principle of progressive realization of human rights and the principle that rules may not be applied retroactively to the detriment of vested rights (derechos adquiridos) and settled legal situations (situaciones jurídicas consolidadas), enshrined in Article 34 of the Constitution. This principle stands as a substantive guarantee of rights—in this case, the right to a healthy and ecologically balanced environment—by virtue of which the State is required not to adopt measures or policies, or enact legal provisions, that, without reasonable and proportionate justification, worsen the level of protection of rights attained up to that point. This principle does not entail absolute irreversibility, since all States experience domestic situations of an economic, political, or social nature, or situations caused by nature, that negatively affect the achievements attained up to that point and compel them to reconsider and lower the new level of protection.

In such cases, Constitutional Law and the principles under examination require that the reduction in levels of protection be justified in light of the constitutional standards of reasonableness and proportionality. In this regard, the Constitutional Chamber has stated in its case law concerning the right to health: ‘…under the PRINCIPLE OF NON-REGRESSION, measures that diminish the protection of fundamental rights are prohibited. Thus, if the Costa Rican State, for the purpose of protecting the right to health and the right to life, has a policy of providing access to medicines, it cannot—and much less through an International Treaty—reduce such access and make it more restrictive under the pretext of protecting trade. (Judgment of the Constitutional Chamber No. 9469-07).’ Regarding the right to the environment, it stated: ‘The foregoing constitutes an evolving interpretation of environmental protection in accordance with Constitutional Law, which does not permit regression to its detriment.’ (Judgment of the Constitutional Chamber No. 18702-10).” (Emphasis not in the original).

(To the same effect, judgments 2014-012887, 2017-002375, 2017-005994, 2019-012745 and 2019-017397).” Accordingly, under the principle of progressive realization, the State assumes the obligation to increase, to the extent possible, the levels of human-rights protection, including the right to a healthy and ecologically balanced environment. The application of the principle of non-regression, in turn, constitutes a safeguard requiring the State to refrain from adopting measures, policies, or provisions that, without reasonable and proportionate justification, worsen the level of protection already attained for fundamental rights.

In view of the principles of progressive realization and non-regression in environmental matters, and considering the provisions of both the ‘Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere’ and the National Parks Service Law, the commercial exploitation of the resources of national parks and the conduct of commercial activities by visitors are prohibited. Nevertheless, to the detriment of those principles, Law No. 9892 provides general authorizations for conducting commercial tourism activities in Parque Nacional Isla San Lucas, as well as for entering into agreements or contracts for the provision of commercial services, as is evident from Articles 9(d) and 14(g).

In addition to the foregoing, in the matter under review, as noted in previous recitals (considerandos), there is no evidence that scientific studies were conducted in connection with the challenged law to safeguard the precautionary principle, the preventive principle—in environmental and cultural matters—and the principle of objective environmental protection (principio de objetivación de la tutela ambiental), as well as the fundamental rights enshrined in Articles 50 and 89 of the Constitución Política.

Indeed, although authorization to conduct commercial activities within Parque Nacional Isla San Lucas could create a risk of serious or irreversible harm in an area subject to absolute conservation protection under the terms previously set forth, it does not appear that adequate and sufficient measures were adopted to safeguard the environment, for example, through studies identifying the types of commercial activity that are absolutely prohibited or the specific guidelines with which such activity must comply.

In light of this situation, we find that the principles of progressive realization and non-regression in environmental matters, the precautionary and preventive principles—in environmental and cultural matters—and the principle of objective environmental protection, as well as the fundamental rights enshrined in Articles 50 and 89 of the Constitución Política, have been violated. Consequently, we consider the word “commercial” in Article 9 of Law No. 9892, as well as the phrase “and/or commercial” in Article 14 thereof, to be unconstitutional.

VI.On the alleged unconstitutionality of Law No. 9892 of August 24, 2020, with respect to the composition of the Board of Directors responsible for administering Parque Nacional Isla San Lucas.

Article 8 of Law No. 9892 classifies the Board of Directors of Parque Nacional Isla San Lucas as a body with maximum administrative autonomy (órgano de desconcentración máxima) attached to the Ministerio de Ambiente y Energía; it has instrumental legal personality (personalidad jurídica instrumental) for the exercise of its powers and is responsible for the governance and administration of the park. Article 10 thereof, in turn, governs the composition of the Board as follows:

“ARTICLE 10—Composition. The Board of Directors of Parque Nacional Isla San Lucas shall be composed of the following members:

• a)The Minister of Ambiente y Energía, who shall chair it; a Deputy Minister from that ministry may serve as alternate.
• b)The Minister of Cultura; a Deputy Minister from that ministry may serve as alternate.
• c)The Executive President of the Instituto Costarricense de Turismo (ICT); the person serving as general manager or a member of the Board of Directors of that institute may serve as alternate.
• d)A representative of the Executive Branch appointed by the Consejo de Gobierno, which shall also appoint an alternate.
• e)The Mayor of the Municipalidad del cantón Central de Puntarenas; a Deputy Mayor may serve as alternate.
• f)The President of the Cámara de Turismo de Puntarenas; any member of that chamber’s Board of Directors may serve as alternate.

The President of the Board shall hold judicial and extrajudicial representation (representación judicial y extrajudicial) of the body. The President shall also have a casting vote under Article 49 of Ley 6227, Ley General de la Administración Pública, of May 2, 1978. The members of the Board of Directors shall receive no per diem compensation (dieta).” In turn, pursuant to Article 9 thereof, the Board of Directors of Parque Nacional Isla San Lucas has the following powers:

“ARTICLE 9—Duties and powers. The Board of Directors of Parque Nacional Isla San Lucas shall have the following powers:

• a)To define strategies and policies aimed at the consolidation and development of the park.
• b)To contribute to the environmental protection and conservation of the national park.
• c)To establish guidelines for the protection, restoration, and administration of historic buildings; to develop facilities and services for visitors’ rest and recreation; to provide and ensure accessibility to land and maritime routes and port facilities; and, in general, to provide all basic services.
• d)To define environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island.
• e)To approve the strategic marketing and promotional objectives necessary to publicize Parque Nacional Isla San Lucas both within and outside the country.
• f)To approve authorizations, use permits (permisos de uso), and concessions (concesiones) for carrying out works and providing services in the Tourism Zone (Zona turística).

In the case of works involving areas designated as heritage sites, coordination shall be undertaken with the Ministerio de Cultura.

• g)To approve the National Park master plan, as well as the corresponding programs, plans, and budgets.
• h)To approve the administrative structure required for the institutional management of the park.
• i)To approve, renew, amend, or revoke any trust (fideicomiso) relating to Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with public or private entities and persons. It shall determine the national park admission fees and approve contracts for the various reservation and purchasing systems.
• j)To approve the use of public-works concessions involving public services and mutually beneficial contracting with nonprofit entities.
• k)To carry out any other action necessary to ensure the proper operation of Parque Nacional Isla San Lucas and the fulfillment of its purposes.

With respect to the conservation and preservation of historical and architectural heritage, the determination of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail; with respect to the protection of wildlife and conservation of the island’s biodiversity, the technical determination of the Sistema Nacional de Áreas de Conservación (SINAC) shall prevail. At the request of the Board of Directors, those entities shall provide their determinations as expeditiously as possible.” (Boldface added).

Furthermore, Article 1 of the ‘Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere’ provides: “National Parks shall be understood as: Regions established for the protection and conservation of natural scenic beauty and flora and fauna of national significance, from which the public may obtain greater enjoyment when placed under official supervision.” It should now be noted that the Ley de Biodiversidad provides:

“ARTICLE 22.- Sistema Nacional de Áreas de Conservación. The Sistema Nacional de Áreas de Conservación, hereinafter referred to as the System, is hereby created and shall have separate legal personality (personería jurídica propia); it shall be a decentralized (desconcentrado) and participatory system of institutional management and coordination that shall integrate authority over forestry, wildlife, protected areas, and the Ministerio del Ambiente y Energía, for the purpose of establishing policies and planning and implementing processes aimed at achieving sustainability in the management of Costa Rica’s natural resources. Accordingly, the Dirección General de Vida Silvestre, the Administración Forestal del Estado, and the Servicio de Parques Nacionales shall perform their functions and exercise their authority as a single body through the System’s administrative structure, without prejudice to the purposes for which they were established. The System’s authority shall include the protection and conservation of the use of watersheds (cuencas hidrográficas) and water systems (…)

ARTICLE 24.- Composition of the Consejo Nacional. The Consejo Nacional de Áreas de Conservación shall be composed as follows:

1. 1The Ministro del Ambiente y Energía, who shall chair it.
2. 2The Executive Director of the System, who shall serve as secretary of the council.
3. 3The Executive Director of the Oficina Técnica de la Comisión.
4. 4The directors of each Área de Conservación.
5. 5One representative from each Consejo Regional de las Áreas de Conservación, appointed from among the members of each Council.

ARTICLE 25.- Functions of the Consejo Nacional. The functions of this Council shall be:

1. 1To define the implementation of strategies and policies aimed at the consolidation and development of the Sistema Nacional de Áreas de Conservación and to ensure that they are implemented.
2. 2To supervise and oversee the proper technical and administrative management of the Áreas de Conservación.
3. 3To coordinate jointly with the Comisión the preparation and updating of the national strategy for the conservation and sustainable use of biodiversity, which shall be subject to broad consultation with civil society and duly coordinated with the entire public sector within the framework of each Área de Conservación.
4. 4To define strategies and policies related to the consolidation and development of state-protected areas and to supervise their management.
5. 5To approve the strategies, the structure of the administrative bodies of protected areas, and the annual plans and budgets of the Áreas de Conservación.
6. 6To recommend the creation of new protected areas and the upgrading of their protection category.
7. 7To conduct technical and administrative audits to oversee the proper management of the Áreas de Conservación and their protected areas.
8. 8To establish guidelines and directives to ensure consistency among the structures, administrative mechanisms, and regulations of the Áreas de Conservación.
9. 9To appoint the directors of the Áreas de Conservación from a list of three candidates proposed by the regional councils.
10. 10To approve the concession applications referred to in Article 39 of this law.
11. 11Any other functions necessary to fulfill the purposes of this and other laws related to the functions of the System (…)

ARTICLE 28.- Áreas de Conservación. The System shall consist of territorial units known as Áreas de Conservación, under the general supervision of the Ministerio del Ambiente y Energía through the Consejo Nacional de Áreas de Conservación, with authority throughout the national territory, whether involving protected wildlands (áreas silvestres protegidas), highly fragile areas, or privately owned areas used for economic exploitation. Each Área de Conservación is a territorial unit of the country, administratively delimited, governed by a single development and administrative strategy, and duly coordinated with the rest of the public sector. Private and state conservation activities are interrelated in each area, without prejudice to protected areas. The Áreas de Conservación shall be responsible for enforcing the legislation in force concerning natural resources within their geographical boundaries.

They shall implement the policies, strategies, and programs concerning protected areas that have been approved by the Consejo Nacional de Áreas de Conservación; they shall also be responsible for enforcing other laws governing their subject matter, such as the Ley de conservación de la vida silvestre, No. 7317, of 30 de octubre de 1992, the Ley Forestal, No. 7575, of 13 de febrero de 1996, the Ley Orgánica, No. 7554, of 4 de octubre de 1995, and the Ley de Creación del Servicio de Parques Nacionales, No. 6084, of 24 de agosto de 1977. Based on the Council’s recommendations, the Ministerio del Ambiente y Energía shall define the territorial division that is technically most appropriate for the country’s Áreas de Conservación, as well as any modifications thereto.

ARTICLE 29.- Consejo Regional del Área de Conservación. The System shall administer the Áreas de Conservación through a Consejo Regional, which shall be formed by means of a public call issued by the System’s regional representative to all interested nongovernmental and community organizations, municipalities, and public institutions present in the area. It shall include the official responsible for the protected area and shall have at least five members representing different sectors present in the area, elected by the Assembly of the organizations and institutions convened for that purpose; a municipal representative shall always be elected. In those jurisdictions where the organizations specified for forming the Council do not exist, the municipalities shall appoint the members in coordination with the System’s representative. These Councils shall have the organizational structure prescribed by the regulations to this law, which shall include, at a minimum, a President, a Secretary, a Treasurer, and two Members-at-Large, all elected from among their members, as well as a representative of the System, who shall always serve as Executive Secretary.

In Áreas de Conservación where their complexity makes it necessary, Local Councils may be created by resolution of the Consejo Regional del Área de Conservación, and their composition shall be defined in the resolution creating them. Each Consejo Regional shall establish its own regulations within the framework of the legislation in force, which shall be submitted to the Consejo Nacional for final approval. Those regulations shall establish a percentage of the total revenue of the Áreas de Conservación for their operation.” In short, the Sistema Nacional de Áreas de Conservación is a “decentralized and participatory system of institutional management and coordination that shall integrate authority over forestry, wildlife, protected areas, and the Ministerio del Ambiente y Energía, for the purpose of establishing policies and planning and implementing processes aimed at achieving sustainability in the management of Costa Rica’s natural resources”—section 22—which “shall administer the Áreas de Conservación through a Consejo Regional”—section 29.

Furthermore, it should be noted that SINAC has instrumental legal personality (personería jurídica instrumental) and maximum deconcentration (desconcentración máxima), which means that it performs specific functions that the Ministerio de Ambiente y Energía may not assume.

Regarding this matter, it is appropriate to cite the provisions of judgment no. 2006009563 of 16:06 hours on 5 de julio de 2006:

“IV.- The Ley de la biodiversidad deconcentrates two bodies from the Ministerio de Ambiente y Energía: the Comisión Nacional para la gestión de la biodiversidad and the Sistema Nacional de Áreas de Conservación. It grants the former ‘instrumental legal personality’ (article 14) and the latter ‘separate legal personality’ (article 22). These 2 articles are precisely the provisions challenged by the petitioner and are connected to the issue of the body’s legal personality; they state:

‘Article 14.- The Comisión Nacional para la Gestión de la Biodiversidad is hereby created with instrumental legal personality, as a deconcentrated body of the Ministerio de Ambiente y Energía…’ ‘Article 22.- The Sistema Nacional de Áreas de Conservación, hereinafter referred to as the System, is hereby created and shall have separate legal personality; it shall be a decentralized and participatory system of institutional management and coordination that shall integrate authority over forestry, wildlife, protected areas, and the Ministerio del Ambiente y Energía, for the purpose of establishing policies and planning and implementing processes aimed at achieving sustainability in the management of Costa Rica’s natural resources. Accordingly, the Dirección General de Vida Silvestre, the Administración Forestal del Estado, and the Servicio de Parques Nacionales shall perform their functions and exercise their authority as a single body through the System’s administrative structure, without prejudice to the purposes for which they were established.

The System’s authority shall include the protection and conservation of the use of watersheds and water systems.’ In the case of the Comisión Nacional para la Gestión de la Biodiversidad (CONAGEBIO), the provision clearly grants it instrumental legal personality as a deconcentrated body. Although the rule does not expressly specify this body’s degree of deconcentration, this Court understands, based on the powers and specific authority granted to it, that it constitutes maximum deconcentration from the Ministerio del Ambiente y Energía, since it is a body specializing in biodiversity matters. Regarding this type of organization, the Chamber stated in its most recent case law, in judgment No. 2005-3629:

‘IV.- Merits. Because the central issue in this examination is the unconstitutionality of granting a deconcentrated administrative body instrumental legal personality enabling it to enter into contracts, it is appropriate first to review the functions constitutionally assigned to the Executive Branch and the scope of this legal construct.

a- Functions assigned to the Executive Branch by the Constitución Política. Article 140 of the Constitution establishes a sphere of powers and duties that belong exclusively—and to the exclusion of all others—to the Executive Branch, understood as the President of the Republic and the respective Minister. Political or governmental direction and the direction of international policy are thus defined as its own exclusive functions. With respect to political direction—the only function that we shall address, given the subject matter of this action—it is important to emphasize that the Executive Branch is responsible for politically guiding state activity, for the purpose of directing state policies in the various areas of public interest so as to preserve the necessary unity of the State; this is achieved through the various mechanisms of administrative self-protection (autotutela administrativa) (planning authority, directive authority—matters related to the issuance of directives—coordination authority—sectorization and regionalization—and the authority to issue authorizations—approvals, endorsements, and clearances). Thus, far from being a power established by statute, it is a constitutional power belonging to the Executive Branch, as this Chamber has previously held; consequently, it is the Executive that must establish policy in a given area of action, and not the reverse:

“The Executive Branch—Government—as a legal and political organization, is responsible for organizing, directing, and guiding society in all its political, legal, economic, and social aspects. The executive function is an essential task of the Government through its various bodies or ministries, as is the policy-directing function of establishing the objectives and goals of coordinated action by the other public entities and proposing the means and methods for achieving those objectives. It is also an essential function of the Executive Branch to guide, coordinate, and supervise the administrative apparatus (artículo 140, inciso 8 de la Constitución Política) and to issue general rules that do not merely implement statutory provisions but also define their scope (art. 140.2, Constitución Política) ...” (judgment number 3089-98, de las quince horas del doce de mayo de mil novecientos noventa y ocho).

In this regard, it is important to note that, by virtue of the organizational processes of subject-matter decentralization (descentralización por la materia)—autonomous institutions—(artículo 188 a 190 de la Constitución Política), territorial decentralization (descentralización territorial)—municipalities—(artículo 169 y 170 de la Constitución Política), and deconcentration (desconcentración) (artículo 83 de la Ley General de la Administración Pública), these functions are not performed exclusively by the Executive Branch. Nevertheless, pursuant to artículos 26 inciso b) y 27.1 de la Ley General de la Administración Pública, the Executive Branch retains the function of directing and coordinating the tasks of the Government and the Central Public Administration as a whole, as well as those of the decentralized Administration, as applicable in light of the degree of governmental autonomy enjoyed by municipalities—as conferred by a constitutional provision.

This Chamber also stated, in judgment number 2002-06513, de las catorce horas cincuenta y siete minutos del tres de julio del dos mil dos, that the structure of the Costa Rican State was established by the original Constituent Assembly in the Constitución Política and that, although its structure is not closed (“números clausus”), the ordinary legislature—the undisputed holder of residual authority—must, when creating public entities and bodies, comply with the principles of that fundamental order. Thus, public-law doctrine draws a clear distinction between administrative decentralization and administrative deconcentration, characterizing the former as comprising public legal entities with full or special legal personality; with a specific power or jurisdiction that they exercise exclusively or solely, rather than concurrently, alternatively, or in parallel. Consequently, the higher-level Entity (the State) may not encroach upon their sphere of jurisdiction, since the powers in question have been transferred from the Executive Branch to the new institution; to that end, they are provided with their own assets and budgetary autonomy, such that they are recognized as having the legal capacity to administer themselves (administrative autonomy), under the terms of artículo 188 de la Constitución Política:

“The autonomous institutions of the State enjoy administrative independence and are subject to the law in matters of governance. Their directors are accountable for their administration.” A deconcentrated body (órgano desconcentrado), in turn, refers to the phenomenon occurring within the same legal person—without creating a new entity—whereby a specific area of jurisdiction is assigned to a subordinate body that remains dependent, as to matters not deconcentrated, upon the hierarchy of the entity to which it belongs, as provided in artículos 83.2, 83.3, 83.4 y 83.5 de la Ley General de la Administración Pública:

“2. Minimum deconcentration shall exist when the superior authority may not:

• a)Assume the subordinate body’s powers; and b) Review or replace the subordinate body’s conduct, either on its own initiative or at the request of a party.

3. Deconcentration shall be maximum when the subordinate body is also exempt from the superior authority’s orders, instructions, or circulars.

4. Provisions creating minimum deconcentration shall be restrictively construed against the jurisdiction of the deconcentrated body, and those creating maximum deconcentration shall be broadly construed in its favor.” Administrative deconcentration therefore exists when a statutory provision assigns exclusive jurisdiction, with some degree of autonomy, to a subordinate body of an entity, thereby causing the hierarchical superior to lose that jurisdiction. Accordingly, the subordinate body’s status can never be equal to that of its superior, even (sic) in cases involving the maximum degree of deconcentration. Legal doctrine unanimously holds that the Public Administration comprises all public entities making up the administrative organization—that is, the higher-level public entity (the State or Central Public Administration) and all other lower-level public entities (the Decentralized Public Administration, whether institutional or service-based—autonomous institutions—or territorial—municipalities), which have been created through an exercise of sovereign authority, whether constitutional (as in the case of municipalities) or statutory.

In this regard, decentralization always entails the creation of lower-level public entities distinct from the State and endowed with legal personality, their own assets—which implies financial autonomy—and exclusive jurisdiction from which all others are excluded and which is severed from the Executive Branch. For this reason, the higher-level public entity—the State—may not encroach upon their sphere of jurisdiction, although they remain subject to administrative oversight (tutela administrativa) through direction, planning, coordination, and control. Thus, the fundamental element for determining the existence of an entity is the conferral of legal personality, delegated by the State for the exercise of specific jurisdiction, the immediate consequence of which is to make the entity a center to which rights and obligations may be attributed—that is, it authorizes the entity to manage the delegated powers on its own behalf and authority, in accordance with the degree of autonomy granted: administrative autonomy—minimum and first-degree autonomy—characteristic of autonomous institutions; governmental autonomy—second-degree autonomy—characteristic of municipalities and the Caja Costarricense del Seguro Social with respect to the administration of social insurance; and organizational autonomy—full or third-degree autonomy—characteristic of State universities.

Thus, conferring legal personality upon a public entity places it in a different position from one that, because it lacks legal personality, constitutes a body. Accordingly, the actions performed by these entities are the responsibility of the entity, not of the State in the strict sense. Lastly, it must be recalled that decentralization is an organizational model of the Administration intended to achieve greater efficiency in public administration and thereby satisfy the public interest entrusted to it.

b- Instrumental legal personality (personalidad jurídica instrumental). The Chamber has held that conferring instrumental legal personality upon a deconcentrated body is not unconstitutional when used as a model of administrative organization to achieve greater efficiency within the state apparatus. It has been regarded as budgetary personification (personificación presupuestaria), which grants a deconcentrated body the legal capacity to administer its resources independently of the public Entity to which it belongs, although it remains subordinate in all other respects inherent to the deconcentrated function. This entails providing the legal mechanisms and instruments strictly necessary for the body to fulfill the public duties and functions delegated to it by law, all of which is not only appropriate but necessary under the protection of two fundamental principles of public administration: efficiency and adaptability to change.

Accordingly, this instrumental capacity is subject to the terms and conditions established in the law creating the body and is limited to what is strictly indispensable for performing the delegated public function; therefore, if the law omits a particular power, that power must be presumed to belong to and be reserved for the superior authority. Thus, the body may hire personnel and procure goods and services indispensable for performing the public function delegated to it, but only insofar as the law expressly authorizes it to do so. Furthermore, all constitutional rules and principles governing the control and oversight of the Public Treasury are binding upon and applicable to this type of body, including those governing administrative procurement (contratación administrativa) and Budgetary Law (Derecho Presupuestario). In all other respects, these bodies are subject to the oversight systems applicable to the activities of public institutions.” Based on this assessment, the Court maintains that granting instrumental legal personality to a deconcentrated administrative body is not unconstitutional, in accordance with the considerations set out above.

Accordingly, the creation of CONAGEBIO as a deconcentrated body with instrumental legal personality is not unconstitutional. The Chamber likewise applies the foregoing considerations to the Sistema Nacional de Áreas de Conservación, which, under the challenged artículo 22, was established as a deconcentrated and participatory institutional management and coordination system for integrating authority over forestry, wildlife, protected areas, and the Ministerio de Ambiente y Energía. Although that provision states that this body shall have its own legal personality, such personality cannot be understood as full, but rather as instrumental, since the legislature specifically created it as a deconcentrated body to assign it exclusive and technical powers, while granting it a degree of independence and impartiality that would enable the Administration to attain greater effectiveness, efficiency, speed, and agility in its operations. Accordingly, this provision is not unconstitutional either” (emphasis not in the original).

The foregoing demonstrates that SINAC plays a fundamental role in relation to conservation areas (áreas de conservación), which include protected wild areas (áreas silvestres protegidas) such as isla San Lucas. This is reflected in its status as a body with maximum deconcentration in matters involving forestry, wildlife, and protected areas. Consequently, the Sistema Nacional de Áreas de Conservación exercises exclusive and technical powers in those fields, and MINAE may not issue orders, instructions, or circulars to it.

Consistent with that role, the regulations implementing the Ley Forestal—decreto ejecutivo nro. 25721 del 17 de octubre de 1996—provide:

“Article 11.-On lands previously declared part of the State Natural Heritage (Patrimonio Natural del Estado), whether within or outside Protected Wild Areas, only training, ecotourism, and research activities shall be permitted. These activities shall be subject to the management plan (plan de manejo) of the Protected Wild Area and to the other regulations established herein, as follows:

A- Within Protected Wild Areas In the case of Protected Wild Areas, except for National Parks and Biological Reserves, ecotourism activities may be conducted solely and exclusively in the zones established by the Sistema Nacional de Áreas de Conservación (SINAC), in accordance with the zoning of each Protected Wild Area” (emphasis added).

Another example of the role assigned to SINAC with respect to protected wild areas appears in the Ley de Conservación de la Vida Silvestre:

“Article 83.-The extraction of wildlife (vida silvestre) (*), both continental and insular, is prohibited in national wildlife refuges (refugios nacionales de vida silvestre), except for management and extraction for nurseries or wildlife breeding facilities (zoocriaderos), following completion of the corresponding scientific and technical studies.

The Sistema Nacional de Áreas de Conservación (*) shall have the powers and duties established by Ley No. 6043 with respect to national wildlife refuges that include areas within the maritime-terrestrial zone (zona marítimo terrestre).” Furthermore, the Regulations to the Ley de Conservación de la Vida Silvestre—decreto ejecutivo nro. 40548 of 12 de julio de 2017—provide:

“Article 9.- Functions of SINAC. For the purposes of the Law and these Regulations, SINAC shall have the following functions:

1. Prepare and update the National Wildlife Plan (Plan Nacional de Vida Silvestre), in accordance with the policies established in the Política Nacional de Biodiversidad and its Strategy, the Plan Nacional de Desarrollo, and institutional planning instruments.

2. Grant the licenses, permits, or authorizations specified in the LCVS and these Regulations.

3. Ensure the proper application of and compliance with the legal framework (ordenamiento jurídico) in force concerning wildlife.

4. Prepare regulations for control and subsistence hunting (caza de control y subsistencia), and for the conservation and sustainable use (aprovechamiento sostenible) of wild flora and fauna, as applicable.

5. Serve as the country’s focal point (administrative authority) before CITES and ensure its proper application and enforcement, as established in the LCVS and within the scope of these Regulations.

6. Develop and keep the Sistema Nacional de Información sobre Vida Silvestre up to date.

7. Prepare and review the Protocols established in these Regulations.

8. Convene and coordinate the work of the Comisión Nacional de Vida Silvestre.

9. Prepare educational materials publicizing SINAC’s mission, objectives, and programs concerning wildlife conservation and sustainable use.

10. Perform any other functions assigned to it by CONAC or the Ministro de Ambiente y Energía.

Article 10.- Functions of the Áreas de Conservación. For the purposes of the Law and these Regulations, the Áreas de Conservación shall have the following functions:

1. Participate in preparing institutional programs and projects and implement them in accordance with the established procedures and provisions.

2. Coordinate the implementation of activities with other competent departments.

3. Inform and coordinate with the Secretaría Ejecutiva del SINAC regarding the implementation of wildlife-related programs and projects at the regional level.

4. Grant and supervise use permits (permisos de uso) and administrative decisions (resoluciones administrativas) for the operation of management sites (sitios de manejo), as well as issue licenses for control hunting, wildlife use with or without commercial purposes, and other acts inherent to their administration.

5. Participate in rapid ecological assessments (evaluaciones ecológicas rápidas) and assessments of wildlife species’ population status, and issue the appropriate recommendations in coordination with the Secretaría Ejecutiva del SINAC.

6. Order management measures aimed at protecting and sustainably using endangered species, and promote research on those species in coordination with the Secretaría Ejecutiva del SINAC.

7. Review, evaluate, and approve or reject management plans (planes de manejo) for management sites, and ensure their effective implementation.

8. Promote scientific research concerning wildlife and the publication of technical and scientific documents, while ensuring compliance with national legislation. Particular emphasis shall be placed on promoting research concerning species that require appropriate technical management to foster coexistence with human activities, and on methods for managing wildlife populations exhibiting abnormal growth or distinctive problems, in coordination with the Secretaría Ejecutiva del SINAC.

9. Analyze and assess the impacts caused by individual wild-animal species on agricultural and livestock activities.

10. Conduct formal and non-formal environmental education programs to raise community awareness regarding the proper management of wild flora and fauna, in accordance with institutional priorities.

11. Keep the Sistema Nacional de Información sobre Vida Silvestre up to date based on the actions they undertake.

12. Carry out prevention, control, and protection activities, and address complaints as appropriate.

13. Ensure proper compliance with wildlife legislation.

14. Support the Secretaría Ejecutiva in the applicable proceedings.

15. Perform any other functions assigned to them by the legislation in force, the Director Ejecutivo del SINAC, CONAC, or the Ministro de Ambiente y Energía.” For its part, the Ley de Biodiversidad provides:

“ARTICLE 61.- Protection of protected wildlife areas (áreas silvestres protegidas). The State must give priority attention to protecting and consolidating the state-owned protected wildlife areas located within the Áreas de Conservación. For these purposes, the Ministerio de Ambiente y Energía, in coordination with the Ministerio de Hacienda, shall include in the national budgets the respective transfers to the trust fund or financial mechanisms for protected areas, so as to ensure, at a minimum, the personnel and resources deemed necessary by the Sistema Nacional de Áreas de Conservación for the operation and integrity of state-owned protected wildlife areas and the permanent protection of national parks, biological reserves, and other protected wildlife areas owned by the State.” Now, section 9 of ley nro. 9892 assigns the following role to the Sistema Nacional de Áreas de Conservación: “(…) for the protection of wildlife and conservation of the island’s biodiversity, the technical opinion (criterio técnico) of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail.

At the request of the Junta Directiva, those entities shall provide their opinions as expeditiously as possible.” However, first, the foregoing does not imply that the Junta Directiva del Parque Nacional Isla San Lucas is required to request SINAC’s technical opinion. In fact, consultation with SINAC is provided for as a discretionary power of the Junta Directiva, which it may well choose not to exercise.

Moreover, it should be noted that responsibility for protecting the environment rests with the State as a whole; accordingly, properly discharging that responsibility requires coordinated efforts among the various Branches, bodies, and entities, among others. An example of this can be seen in judgment nro. 2019017397 at 12:54 hours on 11 de setiembre de 2019, which held:

“X.- On the stewardship (rectoría) of the Ministerio de Ambiente y Energía and the necessary coordination among the various institutions in environmental matters.- The preceding considerando stated that State institutions are the first entities called upon to comply with environmental protection legislation, and that there is no justification whatsoever for exempting them from compliance with environmental requirements. Accordingly, this section will explain the stewardship of the Ministerio de Ambiente y Energía in environmental matters. It will also discuss the necessary coordination that must exist among the various State institutions. In this regard, in judgment número 2004-8928 at 16:37 hours on 18 de agosto de 2004, this Court stated that the central State is clearly the entity primarily entrusted with protecting the environment. This is reaffirmed in the Ley Orgánica del Ambiente, número 7554 of 04 de octubre de 1996, which delegates a substantial portion of the powers in this area to the Ministerio de Ambiente y Energía without relieving other public entities of their responsibilities in this field.

Likewise, for the matter at issue, it is important to clarify that the Ministerio de Ambiente y Energía also has the authority to administer national refuges and wetlands (humedales), as additionally derived from Articles 82 and 84 of the Ley de la Conservación Silvestre, Article 32 of the Ley Orgánica del Ambiente, Article 13 of the Ley Forestal, and Article 58 of the Ley de Biodiversidad (see judgment número 2004-8928 at 16:37 hours on 18 de agosto de 2004).

Although stewardship in environmental matters rests with the Ministerio de Ambiente y Energía, it must be clarified that the State, broadly understood, is the guarantor of the protection and safeguarding of the environment and natural resources (see judgment número 6922-2010 of XX del XX). In other words, although the central State delegates environmental protection to the Ministry in question, this does not eliminate the responsibility of the other (sic) State institutions in this area. In this regard, this Constitutional Chamber has also expressed the need for coordination among public agencies aimed at ensuring environmental protection. Thus, it stated:

“On various occasions, constitutional case law has indicated that protecting the environment is a task incumbent equally upon everyone; that is, the State—as a whole—is obligated to take the necessary measures to protect the environment in order to prevent levels of pollution, deforestation, extinction of flora and fauna, and excessive or improper use of natural resources that place the (sic) health of the governed at risk. For purposes of this task, the term public institution must be understood to include both the Central Administration—the Ministries, such as the Ministerio del Ambiente y Energía and the Ministerio de Salud, which, by reason of their subject matter, have extensive involvement and responsibility regarding environmental conservation and preservation and which most often act through their specialized departments, such as the Dirección General de Vida Silvestre, the Dirección Forestal, and the Secretaría Técnica Nacional Ambiental (SETENA)—as well as decentralized institutions, such as the Instituto Nacional de Vivienda y Urbanismo, SENARA, the Instituto Costarricense de Turismo, and the Instituto Costarricense de Acueductos y Alcantarillados.

Municipalities, of course, also bear significant responsibility for this task within their territorial jurisdictions. It might therefore be thought that this multiple allocation of responsibility would cause chaos in administrative management, but that is not the case. To prevent the simultaneous coexistence of spheres of authority of differing origin and nature, duplication of national and local efforts, and confusion regarding the rights and obligations of the various parties involved, it is necessary to establish a series of coordinating relationships among the various departments of the Poder Ejecutivo and decentralized institutions, and between those institutions and the municipalities, so that they may carry out the functions entrusted to them (…)” (see judgment número 2009-000139 at 08:53 hours on 13 de enero de 2009).

In summary, although the State delegates a significant portion of its authority in this area to the Ministerio de Ambiente y Energía, and this Ministry exercises the governing function in environmental matters and is therefore responsible for issuing policies on environmental protection and the sustainable management and use of natural resources, it is also true that coordination is required among public agencies to guarantee environmental protection. Consequently, State institutions, the Executive Branch, the Legislative Branch, the Judicial Branch, Municipalities, and any other institutions are all bound by environmental legislation or legislation related to environmental protection (see judgment number 8928 of XX at XX and judgment number 8713-2008 of 09:06 hours on 23 de marzo de 2006)” (emphasis added).

Regarding isla San Lucas, in judgment no. 2011003741 of 14:37 hours on 23 de marzo de 2011, this Court addressed the need to coordinate efforts in order to safeguard the environment and cultural heritage:

“I.- In this constitutional protection proceeding (recurso de amparo), it is alleged that the rights protected under Articles 50 and 89 of the Constitución Política have been violated due to the deplorable condition of the former prison facilities located on Isla San Lucas. According to the petitioner, neither the Ministerio de Ambiente, Energía y Telecomunicaciones, nor the Ministerio de Cultura y Juventud, nor the Municipalidad del Cantón de Puntarenas has taken the measures necessary to maintain the aforementioned facilities in good condition. According to the petitioner, this situation is unlawful and infringes the Law of the Constitution (Derecho de la Constitución).

II.Based on the documentary evidence entered into the record, as well as the reports submitted by the Ministro de Ambiente, Energía y Telecomunicaciones, Teófilo de la Torre Agüero; the Ministro de Cultura y Juventud, Manuel Obregón López; the Acting Director of the Centro de Investigación y Conservación del Patrimonio Cultural, Javier Carvajal Molina; the Directora Ejecutiva del Sistema Nacional de Áreas de Conservación, Giselle Méndez Vega; and the Alcalde Municipal del Cantón Central de Puntarenas, Juan Luis Bolaños Alvarado—which were given under oath, with due warning of the consequences, including criminal consequences, provided for in Article 44 of the Ley de la Jurisdicción Constitucional—it is deemed established that:

a. the buildings on Isla San Lucas are in very poor condition due to the failure of the authorities of the Municipalidad del Cantón de Puntarenas, the Ministerio de Cultura y Juventud, and the Ministerio de Ambiente, Energía y Telecomunicaciones to take the measures necessary to preserve the facilities at the site (see report at folio 83).

III.From the statement of proven facts in this judgment, the Chamber finds that the respondent authorities’ failure to take the necessary measures and carry out the relevant actions to restore, preserve, and maintain the buildings on Isla San Lucas in good condition is unlawful and violates the rights protected under Articles 50 and 89 of the Constitución Política; accordingly, the proper course is to grant the petition in all respects against all respondent authorities. Indeed, irrespective of the dispute concerning the administration of the property on Isla San Lucas, as to which the Constitutional Court declines to issue any ruling on this occasion (because it is a matter that falls entirely outside the summary nature of this constitutional protection proceeding), the obligation of all respondent authorities (including, of course, the Municipalidad del Cantón de Puntarenas) to protect natural beauty and preserve and develop the Nation’s historical and artistic heritage, in strict observance of the right protected under Article 89 of the Constitución Política, is plainly evident.

IV.In the present case, however, it is evident that the deterioration of the facilities on Isla San Lucas is attributable solely and exclusively to the failure established in this constitutional protection proceeding with respect to all respondent authorities, which must coordinate their future actions to preserve the resources and historical heritage of that site. It is clear that the challenged situation is unlawful and infringes the Law of the Constitution; accordingly, the proper course is to grant constitutional protection, but not without first warning the respondents, pursuant to Article 50 of the Ley de la Jurisdicción Constitucional, not to repeat in the future the acts or omissions that warranted granting the petition.

Por tanto:

The petition is granted and, consequently, the Ministro de Ambiente, Energía y Telecomunicaciones, Teófilo de la Torre Agüero; the Ministro de Cultura y Juventud, Manuel Obregón López; the Acting Director of the Centro de Investigación y Conservación del Patrimonio Cultural, Javier Carvajal Molina; the Directora Ejecutiva del Sistema Nacional de Áreas de Conservación, Giselle Méndez Vega; and the Alcalde Municipal del Cantón Central de Puntarenas, Juan Luis Bolaños Alvarado, are ordered to adopt immediately and jointly the necessary measures and to carry out the relevant actions to protect, restore, and preserve the buildings on Isla San Lucas, regarding which a report must be submitted to the Sala Constitucional within the non-extendable period of one year from service of this judgment. The foregoing is ordered with a warning of the consequences, including criminal consequences, arising from disobedience of the orders issued by this Constitutional Court, under Article 71 of the Ley de la Jurisdicción Constitucional.

The (sic) State and the Municipalidad del Cantón de Puntarenas are ordered to pay costs and damages, which shall be assessed in the enforcement of the judgment before the administrative litigation jurisdiction (jurisdicción contencioso-administrativa). This judgment shall be served personally on the officials named above. Let it be communicated.” It should be noted that what the transcribed judgment orders is the coordination of efforts among the respondent authorities for the purpose of preserving cultural heritage and the environment; this does not imply per se that the administration of isla San Lucas must be assigned specifically to a body composed of the aforementioned respondent parties.

On the contrary, it is important to emphasize that, regarding the preservation of objectivity and technical support in the decision-making of certain bodies according to the subject matter under their purview, this Chamber held in judgment no. 2016007123 of 11:00 hours on 25 de mayo de 2016:

“VII.- Regarding the Comisión para la Regulación y Control de la Publicidad Comercial de las Bebidas con Contenido Alcohólico (the Commission). Pursuant to Article 12 of Ley Nº 9047, ‘Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico,’ the Ministerio de Salud is responsible for regulating and controlling all forms of commercial advertising related to the marketing of beverages containing alcohol, disseminated through any means of communication either free of charge or for payment. To fulfill this mandate, the challenged Decree was issued and the Comisión para la Regulación y Control de la Publicidad Comercial de las Bebidas con Contenido Alcohólico was created, whose specific purpose is to review, approve or reject, and monitor commercial advertising for beverages containing alcohol (section 4 of the Decree). Under the challenged section 5, this Commission is composed of 5 principal representatives and their respective alternates; of these, 3 are officials of the Ministerio de Salud freely selected by the Ministro de Salud, one is a representative of UCCAEP, and another represents advertising agencies.

It further provides that the members must possess technical expertise in public health, addiction, law, advertising, and gender issues. Likewise, if this Commission has reasonable doubts in a case, it may request an expert opinion. The members of the Commission serve terms of 4 years and may be reelected for equal terms. In particular, the representatives of the Ministerio de Salud cease to hold office when they are no longer officials of the institution or when the superior authority so decides. The offices of chair and secretary of this body are held by officials of the Ministerio de Salud, who serve terms of two years and may be reelected. Pursuant to Article 8, the quorum required to conduct a session is three members. Its decisions are adopted by an absolute majority, and the chair has a casting vote in the event of a tie. This Commission must rule on the approval or rejection of advertising material, or proposed advertising material, submitted to it within one calendar month, calculated from the business day following submission of the application. Motions for reconsideration (recursos de revocatoria), with a subsidiary appeal (apelación en subsidio), may also be filed against the Commission’s decisions.

The petitioner challenges the Commission’s composition of persons governed by both public and private law, on the ground that it involves a nondelegable public power, compounded by the fact that, given the established quorum, purely commercial private interests incompatible with the public function assigned to that body could prevail in its decisions. On this issue, the Procuraduría General de la República agreed with the petitioner, stating that the function of the Commission responsible for reviewing, approving or rejecting, and monitoring commercial advertising for beverages containing alcohol cannot be delegated to the two representatives of UCCAEP and the advertising agencies, because they have a direct interest in the subject matter over which they exercise control, thereby seriously violating the principles of objectivity, transparency, and impartiality that must govern the public service and that the Sala Constitucional has elevated to constitutional status pursuant to Article 11 of the Constitución Política.

For their part, the representatives of UCCAEP and the associations that entered an appearance in these proceedings stated that the Commission’s composition reflected the principle of citizen participation, without affecting the impartiality of the Commission’s members. They further explained that those members enhanced the Commission’s work through their experience.

As a starting point, it bears repeating that section 12 of Ley Nº 9047, ‘Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico,’ provides that the Ministerio de Salud is responsible for regulating and controlling all forms of commercial advertising related to the marketing of beverages containing alcohol, disseminated through any means of communication either free of charge or for payment. This is unquestionably a public power conferred by the legislature specifically upon this Ministry. It is appropriate to reproduce the referenced article:

“ARTICLE 12.- Commercial advertising The Ministerio de Salud shall be responsible for regulating and controlling all forms of commercial advertising related to the marketing of beverages containing alcohol, disseminated through any means of communication either free of charge or for payment. All controls shall be conducted before the advertising is disseminated.

The use of brands or names of beverages containing alcohol in advertising is prohibited, including on the uniforms of any sports team, association, federation, or league, on means of transportation used for competitions, and on sporting goods belonging to any such entity, as well as in recreational or cultural activities intended for minors.” As a first point, an element that is self-evident must be emphasized. The legislature’s choice of the Ministerio de Salud as the body responsible for regulating and overseeing advertising related to alcoholic beverages was not arbitrary. On the contrary, it was selected because that Ministry is responsible for national health policy, as provided in its organic law (ley orgánica). Given the impact that the consumption of alcoholic beverages may have on the population, the legislature decided to grant that Ministry jurisdiction over advertising related to such beverages.

Just as the first paragraph of the provision supports the conclusion that the oversight of alcoholic-beverage advertising is a public-health matter, the second makes clear that the protection of minors must take precedence in the exercise of such oversight.

This point—the protection of minors—is reflected in numerous provisions of the same law N° 9047, including article 9, subsections a), b), d), e), and g), and articles 13 and 16, concerning the sale of alcoholic beverages to minors and their presence in establishments that sell such beverages, among other matters.

Likewise, the protection of minors in this area is established in the Código de la Niñez y la Adolescencia, article 22 of which provides:

“Article 22—Restricted Messages.

Mass media outlets shall refrain from disseminating messages that infringe the rights of minors or are harmful to their physical, mental, or social development.

Programs, advertising, and other messages broadcast by radio and television shall be suited to the relevant audience. Matters concerning the time slots applicable to programs unsuitable for minors shall be regulated by executive decree.” (Emphasis added).

At the international level, the Convención sobre los Derechos del Niño also provides for the protection of minors with respect to the media. Article 17 thereof reads:

“Article 17 States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially information and material intended to promote the child’s social, spiritual, and moral well-being and physical and mental health. To this end, States Parties shall: (…)

• e)Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to the child’s well-being, bearing in mind the provisions of articles 13 and 18.” (Emphasis added).

It also bears recalling that both—the right to health and the protection of minors—are afforded constitutional and treaty-based protection, as this Chamber has recognized.

In summary, challenged article 12 seeks to regulate and oversee advertising used to market alcoholic beverages in order to protect public health and minors, preventing interests related to such beverages from taking precedence over them.

The task of regulating and overseeing such advertising falls to the Commission, pursuant to the challenged Decreto. As previously explained, state powers must be exercised in accordance with standards of objectivity, since this entails not only the Administration’s adherence to the principle of legality (principio de legalidad), but also the protection of private parties’ rights against state powers. In the case at hand, the Commission’s objectivity is particularly important because its work affects interests afforded special protection at the constitutional and treaty levels, as emphasized in the preceding paragraphs. The Commission’s objectivity in performing its duties can be guaranteed only through a composition that reflects such objectivity and the absence of conflicts of interest in decision-making.

Thus, to resolve the dispute presented, it is necessary to determine whether the Commission’s composition, viewed in light of the principle of objectivity (principio de objetividad) in relation to the best interests of the child (interés superior del menor), is consistent with that statutory mandate and is the most appropriate means of protecting the interests defined by the legislature.

As noted, the members of the associations appearing as passive intervenors (coadyuvantes pasivas) stated that including one representative of advertising agencies and one representative of UCCAEP in the Commission’s composition is an expression of the principle of citizen participation (principio de participación ciudadana), intended to enrich the Commission’s work through those representatives’ specialized knowledge.

However, notwithstanding the foregoing argument, it is equally true that both UCCAEP and the advertising agencies represent entities whose primary purposes place particular emphasis on promoting the business sector and advertising activity, respectively. In certain circumstances, this may conflict with the protection of public health or the best interests of the child, which are essential purposes of the advertising oversight established by law N° 9047.

As stated above, the purpose of advertising oversight is to place public health and the well-being of minors ahead of any other type of interest, including the commercial interests of companies involved in the production and marketing of alcoholic beverages. Given the purposes of that law, however, it is contradictory for its regulation to grant UCCAEP and advertising agencies a significant role in that oversight, because they represent precisely the companies that produce and market alcoholic beverages. There is thus a clear contradiction: the entities that must be monitored and supervised with respect to this particular matter, which is so sensitive in terms of safeguarding minors, are able to influence the decisions of the body responsible for monitoring and supervising them, even though nothing in law N° 9047 indicates that this was the legislature’s intent.

This manifest conflict of interest and its impact on the right to health and the best interests of minors justify the Chamber’s intervention to restore the legislature’s original purpose.

The Chamber does not disregard the fact that the Commission may consider the views of representatives of UCCAEP and advertising agencies because of their knowledge, experience, and perspectives in their respective fields. Nevertheless, there is a more reasonable way to achieve this objective—without adversely affecting the best interests of the child or the principle of objectivity regarding the protection of the right to health—which is provided for in fine in article 5 of the regulation implementing law N° 9047:

“If reasonable doubts exist, the Commission may request the opinion of experts.” It should be noted that a substantial difference between the opinion of one of those experts and that of a Commission member lies in the latter’s ability to vote. If the representatives of UCCAEP and the advertising agencies participated solely under the terms of the foregoing provision—that is, without voting rights—the value of their specialized experience could be retained without calling the objectivity of that collegiate body (órgano colegiado) into question.

In other words, an examination of the reasonableness of the measure, particularly its necessity, leads to the conclusion that voting participation on the Commission by representatives of UCCAEP and the advertising agencies is unnecessary. Necessity means that, among several measures equally suitable for achieving an objective, the competent authority has selected the one that affects individuals’ legal sphere as little as possible. Applying this mutatis mutandis, it is apparent that the participation of those representatives as experts would achieve the objective of making their expertise available to the Commission without calling into question the objectivity that it must maintain when safeguarding health and the best interests of the child.

It also bears referring to the report of the Commission’s President, who stated that they have had to consult, as experts, officials from the Ministerio de Salud itself and from IAFA, a deconcentrated body (órgano desconcentrado) of that Ministry. This need would be alleviated if the Commission included officials from those entities.

Regarding this issue, the UCCAEP representative referred to article 5 (…The persons serving on the Commission must have technical expertise in matters of public health, addiction, law, advertising, and gender…) to emphasize the need for a multidisciplinary composition of experts. However, analyzing that provision in light of the purposes of the regulation—the protection of health and the best interests of the child—instead invites scrutiny of the considerable weight that the Commission’s composition assigns to the views of business-sector representatives, but not to other entities that may have a clear interest in the matter, possess specialized knowledge in the fields identified by that provision—public health, addiction, law, advertising, and gender—and contribute to balancing the interests at stake, such as the Patronato Nacional de la Infancia, the Instituto de Alcoholismo y Farmacodependencia, and others. Safeguarding constitutional article 9 does not entail the unquestioning permissibility of every form of citizen participation, because that would disregard the need to protect other interests of constitutional significance.

Lastly, the Chamber observes that the challenged decree contravenes the statutory provision by granting UCCAEP and advertising agencies powers regarding the appointment of Commission members. This Court notes that those representatives are excluded from the grounds for removal (causales de cesación) established in article 6:

“Article 6—The members of the Commission shall serve four-year terms and may be reelected for equal terms. The representatives of the Ministerio de Salud shall cease to hold office when they are no longer officials of the institution or when the higher authority so decides.” (Underlining added) The Chamber wishes to emphasize that only the Ministry officials serving on the Commission may be removed when a higher authority so decides. In essence, this means that UCCAEP and the advertising agencies may impose their representatives on the Ministry—the entity entrusted by law with supervising and regulating advertising for alcoholic beverages—without those representatives being subject to removal by a higher authority of that Ministry. This amounts to a partial nullification of the law’s substance. If the law granted the Ministerio de Salud jurisdiction over the specified tasks, composing a Commission of persons entirely unconnected with the Ministry constitutes substantive noncompliance with the statutory provision.

For example, the Commission could formally be included within the Ministry’s structure, but if all five of its members hypothetically came from other entities, the law’s substance would be substantively—and entirely—nullified. In this case, the nullification has been partial—only two of the five members represent entities subject to oversight. Even so, given its significance in light of the best interests of the child and the principle of objectivity in relation to the right to health, it does not withstand the constitutional review (control de constitucionalidad) exercised by this Chamber.

Consequently, the phrases “five” and “one representative of UCCAEP and another from the advertising agencies” in Article 5 of the challenged Regulations are declared unconstitutional. As indicated in the preceding paragraphs, the views of the representatives of UCCAEP and the advertising agencies—as well as those of other entities related to the matter, such as the Patronato Nacional de la Infancia, the Instituto de Alcoholismo y Farmacodependencia, etc.—may be considered in the Commission’s work. It is on these terms that the Chamber deems it reasonable to eliminate the voting rights of those representatives on the Commission while preserving their right to be heard within it. This provisional arrangement shall remain in effect for a period of 6 months, which is granted to the Poder Ejecutivo to amend Article 5 on the terms set forth in this judgment.

With respect to provision 8, the Chamber observes that it merely determines how a quorum (quórum) is formed within the Commission and therefore could give rise to constitutional issues only if provision 5 remained in force. However, in view of the declaration that the latter is unconstitutional, the basis for the argument against the former falls away, and its constitutionality is therefore upheld (…)” (emphasis added).

This same ratio decidendi is reflected in the recent decision no. 2022025307 issued at 13:40 hours on October 25, 2022, this time specifically concerning environmental protection (tutela al ambiente). Thus, in recital XII (considerando XII), this Court unanimously stated:

“XII.- REGARDING THE ALLEGED VIOLATION OF THE RIGHT TO A HEALTHY AND ECOLOGICALLY BALANCED ENVIRONMENT (DERECHO A UN AMBIENTE SANO Y ECOLÓGICAMENTE EQUILIBRADO), THE PRINCIPLE OF EQUALITY, THE PRINCIPLE OF THE HIERARCHY OF LEGAL NORMS, THE PRINCIPLE PROHIBITING THE SINGULAR DEROGATION OF REGULATIONS (PRINCIPIO DE INDEROGABILIDAD SINGULAR DEL REGLAMENTO), AND THE PRINCIPLE OF OBJECTIVE ENVIRONMENTAL PROTECTION (PRINCIPIO DE OBJETIVACIÓN DE LA TUTELA AMBIENTAL) BY ARTICLE 18 OF THE BILL UNDER REVIEW. The signatory Deputies inquire whether Article 18 of the bill infringes the right to a healthy and ecologically balanced environment because: a) it establishes priority processing for green-hydrogen production projects with respect to the environmental feasibility assessment (evaluación de viabilidad ambiental), as well as expedited processing, even though this bill does not contain the relevant studies confirming the justification for such expedited treatment; and b) it grants the Ministro de Ambiente y Energía authority to determine the procedure to be followed regarding the environmental feasibility (viabilidad ambiental) of green-hydrogen-related projects, even though this is a function vested in the Secretaria Técnica Nacional Ambiental (SETENA), as provided by the Ley Orgánica del Ambiente, which creates the secretariat as a body with maximum administrative autonomy (órgano de desconcentración máxima) within the Ministerio de Ambiente y Energía (MINAE).

In light of the foregoing, they consider that the provision under review could contravene the principle of hierarchy. Given the interdisciplinary nature of environmental matters, the various administrative divisions must exercise their respective powers in a coordinated manner to better serve the public interest, particularly where the fundamental right to a healthy and ecologically balanced environment is concerned; nevertheless, this would not mean that the Ministro de Ambiente y Energía may assume the exclusive powers granted to SETENA, because authority to design, conduct, and approve environmental impact assessments (evaluaciones de impacto ambiental) does not belong to the Minister; rather, environmental impact assessments fall within the administratively autonomous authority of the Secretaria Técnica Nacional Ambiental. They further contend that such a provision would be disapplied in a particular or specific case—namely, green hydrogen and its feasibility—which could constitute a violation of the principle prohibiting the singular derogation of a legal norm (principio de inderogabilidad singular de la norma) in a specific case.

They also consider it risky for the cited bill to include expedited procedures of this kind. They reiterate that the challenged article provides that the procedure to be followed regarding feasibility shall be the one prescribed by the head of the Ministerio de Ambiente y Energía, which could contravene the principle of objective environmental protection, because the Minister would be making a decision of major significance for the environment despite the existence of a technical body entrusted with that function. They refer to judgment number 14293-2005 of the Sala Constitucional, which held that the principle of objective environmental protection derives from the provisions of the aforementioned Articles 16 and 160 of the Ley General de la Administración Pública and entails the requirement that decisions in this field be supported by technical studies. c) They inquire whether Article 18 of the bill under review infringes the principle of equality because it gives priority to green hydrogen over similar energy-transition projects, which should be considered on equal terms because their objectives coincide with and are related to those of this bill, such as the bill entitled “Ley para la promoción y regulación de recursos energéticos distribuidos a partir de fuentes renovables,” legislative expediente no. 22.009, and the bill entitled “Ley para la Contribución a la Transición Energética,” legislative expediente no. 21.343.

Furthermore, this preferential status is not based on any technical study supporting such treatment as compared with legislation of equal relevance, and the article under review could therefore contravene the principle of equality and nondiscrimination. They contend that no technical analyses or studies justify declaring the green-hydrogen production project to be in the public interest when, as previously indicated, other initiatives with identical purposes do not receive the same treatment. They reiterate that there is a lack of technical and scientific analyses and studies establishing the preferential status of green hydrogen as compared with other energy alternatives such as those mentioned.

The provision under review states as follows:

“ARTICLE 18.- Environmental feasibility. Given the public interest served by green-hydrogen production projects requiring environmental feasibility approval, the review of which shall be conducted on an expedited and priority basis, the procedure to be followed shall be the one prescribed by the head of the Ministerio de Ambiente y Energía (Minae), in accordance with the categorization of the activity, work, or project. Once the type of environmental assessment (evaluación ambiental) to be conducted has been identified, the project name entered on the corresponding form must indicate that it is a priority project so that the expediente intake system can prioritize its processing. Notwithstanding the foregoing, the environmental impact assessment or permit required for the project must be decided within a maximum of sixty calendar days. “ For purposes of analyzing the matters raised, it must first be stated that, as has repeatedly been maintained in this opinion, the Asamblea Legislativa, in exercising its function of enacting laws in both the formal and substantive senses, enjoys broad legislative latitude (libertad de conformación) to implement the constitutional program established by the Poder Constituyente.

This latitude regarding the subject matter regulated has also been termed legislative discretion (discrecionalidad legislativa), understood as that body’s ability, when faced with a particular societal need, to select the statutory solution or rule of law that it deems fairest, most appropriate, and best suited to meet that need from among the range or plurality of policy options freely offered by the electorate through the system of legislative representation. That power is, of course, not unrestricted; it must comply with constitutional provisions, values, and principles. In that regard, the declaration that economic activities involving the research, production, transformation, storage, transportation, marketing, supply, end use, and export of green hydrogen are in the public interest is an expression of the principle of legislative freedom of configuration (principio de libre configuración del legislador), as discussed in recital VII (considerando VII) of this opinion (…)

Furthermore, the constitutionality of Article 18 of the bill is questioned on the grounds that it violates numeral 50 of the Constitución Política because it states that, for projects requiring environmental viability (viabilidad ambiental), “the procedure to be followed shall be that determined by the head of the Ministerio de Ambiente y Energía (Minae), according to the categorization of the activity, work, or project.” To address that issue, it must be noted that the Ley Orgánica del Ambiente, N°7554 of October 4, 1995, in furtherance of Article 50 of the Constitución Política and as a means of safeguarding or ensuring the precautionary principle (principio precautorio), the preventive principle (principio preventivo), and the principle of objectification of environmental law (principio de objetivación del derecho al ambiente), establishes technical jurisdiction for the scientific assessment of the environmental impact of the various activities and projects undertaken by human beings.

Accordingly, that legislation confers this specialized jurisdiction upon a technical body known as the Secretaría Técnica Nacional Ambiental, a body with maximum administrative deconcentration (desconcentración máxima) within the Ministerio del Ambiente y Energía. Consistent with that purpose, it is assigned the fundamental objective of harmonizing environmental impact with production processes (Article 83). To that end, the law grants it the authority to analyze environmental impact assessments (evaluaciones de impacto ambiental) and decide upon them within the time limits established by the Ley General de la Administración Pública, and to recommend the actions necessary to minimize environmental impact, as well as those technically advisable for environmental restoration. Furthermore, Article 17 of the aforementioned Law assigns SETENA jurisdiction to conduct environmental impact assessments of human activities that alter or destroy environmental elements or generate waste or toxic or hazardous materials, and provides that prior approval by that body shall be an indispensable requirement for commencing the activities, works, or projects.

Laws and regulations shall specify which activities, works, or projects require an environmental impact assessment.” Article 18 prescribes that approval of environmental impact assessments must be sought from the Secretaría Técnica Nacional Ambiental, and numeral 19 states that the decisions of the Secretaría Técnica Nacional Ambiental must state their factual and legal grounds, and shall be binding upon both private parties and public entities and agencies. Furthermore, the Ley Orgánica del Ambiente establishes a multidisciplinary and highly technical membership, including a representative of the Ministro del Ambiente y Energía, who shall serve as Secretario General. SETENA also includes a representative of the Ministerio de Salud specializing in sanitary engineering; a representative of the Instituto Costarricense de Acueductos y Alcantarillados specializing in hydrology; a representative of the Ministerio de Agricultura y Ganadería specializing in agronomy; a representative of the Ministerio de Obras Públicas y Transportes specializing in civil engineering; a representative of the Instituto Costarricense de Electricidad specializing in energy development; and a representative of the state universities specializing in biology.

The Secretaría Técnica Nacional Ambiental was also created as a body with maximum administrative deconcentration within the Ministerio de Ambiente y Energía, which, pursuant to Article 83 of the Ley General de la Administración Pública, means that the Minister, in addition to being unable to assume the subordinate body’s jurisdiction or review or replace its actions (whether ex officio or at the request of a party), is likewise barred from issuing orders, instructions, or circulars to that subordinate body. Thus, the legislature intended to provide the Secretaría Técnica Nacional Ambiental with guarantees of independence from its superior authority. This is also evident from Article 88, which provides that the members of the Secretaría shall be full-time officials subject to exclusive-service requirements and prohibited from engaging in personal, professional, or private activities, and that their removal may only (sic) be ordered for serious misconduct or failure to comply with the provisions of this or other laws.

In view of all the foregoing, the Chamber is of the opinion that the legislature has freedom of configuration in creating and assigning administrative powers. This entails discretion in determining which administrative bodies are responsible for performing a particular function in relation to a specific subject matter. Thus, the mere assignment of a specific power to a different body does not, in itself, constitute a constitutional violation. However, where the right to environmental protection is concerned, the preventive and precautionary principles require that technical or scientific authority aimed at determining environmental viability, assessing the impact of a particular activity or project on the environment, or, generally, defining the type of technical-scientific instrument needed to evaluate such effects on the environment and ecosystems be assigned to a technical body rather than to one that is predominantly political. This is because the assessment and analysis of such matters require that decisions granting or denying environmental viability be supported by technical considerations. Although political bodies may establish programmatic guidelines concerning such matters, the specific application of scientific and technical criteria ultimately dictates this functional orientation.

Accordingly, insofar as Article 18 of the bill under review provides that, in determining the viability of projects related to green hydrogen production, “the procedure to be followed shall be that determined by the head of the Ministerio de Ambiente y Energía (Minae),” it disregards the aforementioned criterion of specialized technical functions by transferring the power at issue to a political authority, without any objective reason supporting the individual non-application of, or an exception to, the technical jurisdiction generally assigned in this area to a specialized body under the provisions of the Ley Orgánica del Ambiente. Consequently, such treatment is contrary to Article 50 of the Constitución Política, from which the principle of environmental non-regression (principio de regresión ambiental) derives, because it undermines the technical soundness of decisions concerning the type of assessment, oversight, and enforcement applicable to activities that affect the environment to a greater or lesser extent, to the detriment of the right to a healthy and ecologically balanced environment.

In other words, assigning the head of the environmental portfolio jurisdiction over environmental assessments related to the subject matter of the bill at issue constitutes an individual non-application of the technical powers legally assigned to a specialized body, transferring them instead to a political authority. It therefore constitutes an unjustified exception to the specialized jurisdiction that guarantees a technical assessment of the potential environmental impact of certain productive human-development projects, an analysis directly intended to satisfy the precautionary and preventive principles. Such treatment disregards the aforementioned technical deference, creating asymmetrical treatment in the environmental assessments of this type of anthropogenic development (desarrollo antrópico), without any discernible legitimate grounds capable of supporting that treatment.

On this issue, the consultation is answered to the effect that Article 18 of the bill “Ley para la promoción e implementación de una economía de hidrógeno verde en Costa Rica” is contrary to numeral 50 of the Constitución Política insofar as it provides that “the procedure to be followed shall be that determined by the head of the Ministerio de Ambiente y Energía (Minae)” and that “the environmental impact assessment or permit required by the project must be decided within a maximum of sixty calendar days” (emphasis added).

Based on the foregoing, it is clear that the Chamber has held that, in exercising its powers, the State must act according to objective criteria and in compliance with the unequivocal rules of science or technical expertise, because this affords more effective and efficient protection of individuals’ fundamental rights in relation to state powers and even against private third parties. In the case of the State, the principle of legislative freedom of configuration gives the legislature broad latitude to create and assign administrative powers, as well as to determine which administrative bodies are responsible for a particular function in a specific subject area. However, when the protection of a healthy and ecologically balanced environment is at issue, the constitutional preventive and precautionary principles require that technical or scientific authority aimed at determining environmental viability or the impact of a particular activity or project on the environment, or, generally, at defining the type of technical-scientific instrument needed to evaluate such effects on the environment and ecosystems, be assigned to a technical body rather than to one that is predominantly political.

Indeed, given the requirements for objectifying environmental protection, which have been firmly established through constitutional case law, the assessment and analysis of environmental matters require that all decisions involving an environmental impact be supported by technical considerations. This naturally encompasses decisions, plan designs, or actions relating to any management plan (plan de manejo) for a protected wild area (área silvestre protegida). Although political bodies may issue programmatic guidelines concerning such matters, the specific application of scientific and technical criteria must ultimately prevail in functional direction and the corresponding decisions.

The foregoing requirement has been embodied, for example, in several collegiate bodies (órganos colegiados) with jurisdiction over matters of environmental significance, since their membership reflects the aim of deciding environmental matters on a substantiated basis—that is, based on scientific and technical knowledge rather than considerations of mere political expediency.

For example, Article 5 of the Ley del Servicio de Parques Nacionales provides for a council that serves as an advisory body to the Poder Ejecutivo on policies concerning the creation, development, and conservation of national parks. That body is composed as follows:

“a) The Ministro de Ambiente y Energía, or the Minister’s representative, who shall chair it.

• b)The Ministro de Cultura, Juventud y Deportes or the Minister’s representative.
• c)One representative of the Ministerio de Educación Pública.

ch) One representative of the Instituto Costarricense de Turismo.

• d)The Director del Servicio de Parques Nacionales.
• e)One representative of the Colegio de Biólogos.” This is of crucial importance because the Council’s favorable opinion (dictamen afirmativo) is required to authorize various activities, such as sport and artisanal fishing in certain areas of national parks.

Another example appears in Article 21 of the Reglamento a la Ley de Conservación de Vida Silvestre. It governs the Consejo Nacional de Vida Silvestre, whose purpose is to provide technical support and advice to MINAE and SINAC regarding wildlife conservation and sustainable use, as well as the fair and equitable distribution of the resulting benefits. That commission is composed as follows:

“a. From SINAC, the Coordinador de Vida Silvestre and the corresponding alternate.

b. Two principal representatives and two alternates appointed by CONARE.

c. One principal representative and one alternate from the Colegio de Biólogos de Costa Rica.

d. One principal representative and one alternate representative from the Colegio de Ingenieros Agrónomos.

e. Two principal representatives and two alternate representatives from nonprofit nongovernmental organizations with proven experience in wildlife conservation and sustainable use, which shall be selected through a participatory process led by MINAE SINAC.” Consistent with the ratio decidendi of judgment no. 2022025307—where, as in the matter under examination (sub examine), the principal constitutional interest protected is the environment, which has both a natural and an urban dimension, as explained above (ut supra)—this constitutional challenge reveals that safeguarding cultural heritage and the right to a healthy and ecologically balanced environment requires technically appointed officials with scientific expertise in the composition of the Board of Directors of Parque Nacional Isla San Lucas.

In this regard, although the legislature’s discretion to establish and assign administrative powers is constitutionally protected, it is nonetheless subject to a series of limitations—for example, when matters concerning environmental protection are involved—because, in such cases, the principles of scientific grounding of environmental protection (objetivación de la tutela ambiental), prevention and precaution, the logical-legal principle of noncontradiction, and the fundamental rights to a healthy and ecologically balanced environment and to the protection of natural beauty (Articles 50 and 89 of the Constitución Política) make it imperative that the entity or body responsible for overseeing the management and administration of a protected wilderness area (área silvestre protegida) include scientific expertise within its composition, so that this factor, which promotes objectivity and provides technical support for decisions, participates in the decision-making process.

In the matter under consideration (sub iudice), this means that the Board of Directors of Parque Nacional Isla San Lucas must be constituted in a manner that strengthens the evidence-based and technical nature of its decisions, a purpose that inexorably requires its members to possess sufficient scientific knowledge regarding environmental and cultural-heritage matters by virtue of their experience in those fields and because their appointment is based on professional merit rather than purely political considerations.

Indeed, it should be recalled that Article 4 of Executive Decree no. 29277, ‘Declara Refugio Nacional de Vida Silvestre el área comprendida por la isla San Lucas y el área marino costero,’ provided:

“Article 4—The administration of the protected areas hereby declared shall fall within the jurisdiction of the Ministerio de Ambiente y Energía and the institutions established under the regulations in force. The management categories (categorías de manejo) established in this decree shall be governed by the applicable provisions of the legislation currently in force. Activities involving the harvesting of marine species shall be permitted pursuant to the regulations established by the Instituto de Pesca y Acuacultura (INCOPESCA).” Thus, since its creation, the administration of Refugio Nacional de Vida Silvestre Isla San Lucas rested with MINAE and the institutions contemplated in the regulations in force, such as SINAC, whose powers include administering conservation areas (áreas de conservación), as well as the Consejo Nacional de Áreas de Conservación, whose functions include defining strategies and policies aimed at the consolidation and development of SINAC and supervising and overseeing the proper technical and administrative management of conservation areas (see the above-cited provisions of the Ley de Biodiversidad).

Nevertheless, although the administration of Refugio Nacional de Vida Silvestre Isla San Lucas, pursuant to Executive Decree no. 29277, had been expressly assigned to MINAE and the institutions established under the regulations in force, the enactment of Law no. 9892 set that arrangement aside, because the area of that refuge, which became part of Parque Nacional Isla San Lucas, was placed under the administration of the Board of Directors provided for in Article 9 of that law, composed of: “a) The Minister of Ambiente y Energía, who shall chair it; a Vice Minister from that ministry may serve as alternate. b) The Minister of Cultura; a Vice Minister from that ministry may serve as alternate. c) The Executive President of the Instituto Costarricense de Turismo (ICT); the person serving as its general manager or a member of that institute’s Board of Directors may serve as alternate. d) One representative of the Poder Ejecutivo appointed by the Consejo de Gobierno, which shall also appoint an alternate. e) The Mayor of the Municipalidad del cantón Central de Puntarenas; a Deputy Mayor may serve as alternate. f) The President of the Cámara de Turismo de Puntarenas; any member of that chamber’s Board of Directors may serve as alternate.” Such a situation violates the principles of progressivity and non-regression in environmental protection (no regresión de la tutela ambiental), because administration of the area in question was transferred from a body possessing technical environmental expertise to one in which not a single member is technically appointed on the basis of demonstrated scientific knowledge.

Likewise, the precautionary principle and the principle of scientific grounding of environmental protection are violated because, in light of the considerations set out above, it is essential that the Board of Directors of Parque Nacional Isla San Lucas include representatives from agencies that are specifically scientific and concerned with protecting the environment and cultural heritage, particularly since that collegial body (órgano colegiado) is responsible for making a series of technical and environmental decisions affecting the preservation of natural and cultural resources, sustainability, and biodiversity, among other matters important to protecting a healthy and ecologically sustainable environment in that protected wilderness area and safeguarding the aforementioned cultural heritage.

Specifically, that collegial body is responsible, among other matters, for: “a) Defining strategies and policies aimed at the consolidation and development of the park. b) Contributing to the environmental protection and conservation of the national park. c) Establishing guidelines for the protection, restoration, and administration of historic buildings; developing facilities and services for visitors’ rest and recreation; enabling and ensuring the accessibility of land and maritime routes and port facilities; and, in general, providing all basic services. d) Defining environmentally sustainable tourism activities, whether commercial, transportation-related, sporting, artistic, or cultural, that encourage tourism and visits to the island (…) f) Approving authorizations, use permits (permisos de uso), and concessions for carrying out works and providing services in the Tourism Zone. In the case of works related to areas declared to be heritage sites, coordination shall take place with the Ministerio de Cultura. g) Approving the Master Plan for the National Park, as well as the corresponding programs, plans, and budgets. h) Approving the administrative structure required for the institutional management of the park.” Indeed, other tasks that are not specifically environmental, such as marketing and promoting the park, must always take into account the need to safeguard nature and cultural heritage, precisely because it is a protected wilderness area of historical and architectural interest.

It should be emphasized that the legal system had previously assigned some of the functions now conferred upon the Board of Directors of Parque Nacional Isla San Lucas to the Consejo Nacional de Áreas de Conservación and SINAC. For example, Article 25 of the Ley de Biodiversidad lists among the functions of the aforementioned council: “1.- Defining the implementation of strategies and policies aimed at the consolidation and development of the Sistema Nacional de Áreas de Conservación, and ensuring that they are implemented. 2.- Supervising and overseeing the proper technical and administrative management of the Áreas de Conservación (…) 4.- Defining strategies and policies related to the consolidation and development of state-protected areas, as well as supervising their management. 5.- Approving the strategies, the structure of the administrative bodies of protected areas, and the annual plans and budgets of the Áreas de Conservación (…) 8.- Establishing guidelines and directives to ensure consistency among the structures, administrative mechanisms, and regulations of the Áreas de Conservación (…) 10.- Approving the concession applications referred to in Article 39 of this law.” In addition, Article 9 of the Reglamento a la Ley de Conservación de la Vida Silvestre established that SINAC is responsible for “Granting the licenses, permits, or authorizations specified by the LCVS and these regulations.” Therefore, the functions granted to the Board of Directors of Parque Nacional Isla San Lucas in subsections a), b), f), and h) of Article 9, to mention some examples, had previously been conferred upon SINAC and the Consejo Nacional de Áreas de Conservación—that is, technical bodies.

Regarding this matter, the above-cited official letter no. DM-1216-2019, signed by MINAE on November 27, 2019, concerning bill no. 21287, which became Law no. 9892, stated: “With respect to Article 7 concerning the creation of the Board of Directors of Parque Nacional Isla San Lucas, it is recommended that it be a body with maximum administrative autonomy (órgano de desconcentración máxima), attached to the Ministerio de Ambiente y Energía and endowed with instrumental legal personality (personalidad jurídica instrumental) for the exercise of its powers. It is also recommended that the positions be permanent and that the body be chaired by MINAE. We further recommend that its members possess suitable technical and specialized qualifications and be assisted by a person serving as Executive Manager of the Board, who would support administrative management in specialized tasks such as the conservation and restoration of the island’s cultural heritage. It must also be supported by administrative personnel in order to fulfill all the obligations imposed by law. Board members must not receive any per diem compensation, and we suggest that they be appointed for two-year terms” (emphasis added).

Similarly, memorandum no. CICPC-CNP-023-2019, signed on July 1, 2019 by the Comisión Nacional de Patrimonio Histórico Arquitectónico in connection with the aforementioned bill no. 21287, stated:

“ARTICLE 9—Composition The Comisión Nacional de Patrimonio Histórico Arquitectónico considers that there is no need to establish a Board of Directors that would replace or supplant functions conferred by law upon the Centro de Patrimonio Cultural.

ARTICLE 12—Development and Infrastructure With respect to Articles 09 and 12, this Commission considers it highly concerning that a Commission lacking technical expertise or specialists would be given functions that take precedence over the ministerial responsibilities for protecting heritage and the environment, in the interests of tourism.

Historical enjoyment and appreciation may be understood in many different ways by a Commission that would make decisions by vote, without specialized judgment prevailing (…)” (emphasis added).

Likewise, report No. AL-DEST-IJU-006-2020, issued by the Department of Studies, References and Technical Services of the Asamblea Legislativa concerning the bill that became Law No. 9892, stated:

“Article 9.- Composition Establishes how (sic) the Board of Directors of Parque Nacional Isla San Lucas shall be constituted.

With respect to the representatives appointed to the Board of Directors, it is essential that the article establish who (sic) shall appoint them, as well as the rank and technical expertise that each representative must possess, in addition to their decision-making authority for adopting resolutions.

Because this is a board of directors responsible for managing the activities of a protected wildlife area (área silvestre protegida) and a sustainable peripheral tourism area, whose management involves ecosystemic, ecological, social, economic, cultural, tourism, and environmental principles, the representatives must possess expertise enabling them to make decisions consistent with those interests.

Regarding the operation and organization of the body established herein, although Article ten refers to the General Law of Public Administration (Ley General de la Administración Pública), it should specify, for greater clarity, that the reference concerns matters ‘pertaining and applicable to collegial bodies (órganos colegiados).’ Nevertheless, it would be important, at a minimum, to specify basic aspects such as the quorum required to constitute the body and the minimum number of meetings per month” (emphasis added).

Based on the foregoing, the fact that the Board of Directors of Parque Nacional Isla San Lucas, pursuant to section 9 of Law No. 9892, does not include technical bodies responsible for protecting the environment and cultural heritage that would specifically assist in designing policies, guidelines, and other matters of environmental and cultural significance within the decision-making process of that collegial body is contrary to the principles of progressivity and non-regression in environmental matters (principios de progresividad y de no regresión en materia ambiental), the precautionary principle (principio precautorio), the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), the preventive principle regarding cultural heritage (principio preventivo en materia de patrimonio cultural), and, consequently, Articles 50 and 89 of the Constitution (Carta Magna).

Moreover, although section 9 of Law No. 9892 stated: “In matters concerning the conservation and preservation of historical-architectural heritage, the opinion of the Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura shall prevail, and in matters concerning the protection of wildlife and the conservation of the island’s biodiversity, the technical opinion of the Sistema Nacional de Áreas de Conservación shall prevail,” it is nonetheless true that there appears to be no obligation to request such technical opinions. Likewise, it should be noted that the conservation and preservation of historical-architectural heritage and the protection of wildlife and biodiversity on the island are only some of the culturally and environmentally significant matters in which the opinions of the Centro de Investigación y Conservación del Patrimonio Cultural and SINAC, respectively, must prevail, as expressly provided by the provision, because safeguarding such constitutional interests naturally extends to other areas of protection pertaining to the park in its capacity as a protected wildlife area and site of cultural interest, such as dignity in relation to nature, landscape design, education in this field, among others.

Finally, although the case record contains evidence that representatives of SINAC participated in ordinary meetings Nos. 01-20, 02-20, 01-21, 03-21, 05-21, 06-21, 07-21, 01-22, 02-22, 02-22, 05-22, 07-22, 09-22, 10-22, 01-23 and 02-23 of the Board of Directors of Parque Nacional Isla San Lucas, it has not been established that they attended all those meetings. For example, of the 14 ordinary meetings held in 2021, that Board of Directors included the participation of a representative of the Sistema Nacional de Áreas de Conservación in only five of them.

Consequently, section 10 of Law No. 9892 is found to be unconstitutional.

VII. Regarding the alleged unconstitutionality of Law No. 9892 insofar as it concerns the granting of concessions

We, the undersigned justices, also maintain that, before granting any type of concession, authorization, or use permit (permiso de uso) in a national park, sufficient and individualized studies must be available which, in accordance with the principle of objectification of environmental protection, provide technical and scientific proof that neither the environment nor, in the special case of Isla San Lucas, cultural heritage will be harmed.

Notwithstanding the foregoing, Law No. 9892 authorizes the granting of concessions and permits for activities and facilities unrelated to the park service: i) without a prior scientific study establishing guidelines as to which activities may or may not be concessioned in Parque Nacional Isla San Lucas, in accordance with its particular environmental and cultural characteristics and its conservation objectives and purposes; and ii) without expressly requiring environmental impact studies (estudios de impacto ambiental) before granting those concessions, for the purpose of determining through technical and scientific criteria that no environmental deterioration will be caused. Nor is compliance with the precautionary principle established, despite the risk created by granting concessions in a national park that also possesses cultural heritage. Consequently, because violations of the precautionary and preventive principles, the principle of objectification of environmental protection, and the fundamental rights enshrined in sections 50 and 89 of the Political Constitution (Constitución Política) have been established, the second and third paragraphs of Article 7, subsections f) and j of section 9, and the phrase “fees from concessions and permits” in section 17 of Law No. 9892 are shown to be unconstitutional.

VIII.Regarding the remaining claims raised in the case at bar (sub lite). Finally, we note that we agree with the majority concerning the matters set forth in recitals (considerandos) XII and XIII of this decision.

IX.Conclusion. In sum, we, the undersigned justices, dissent, grant the action, and annul Law No. 9892 of August 24, 2020, entitled ‘Law Creating Parque Nacional Isla San Lucas,’ for violating the principles of progressivity and non-regression in environmental matters; the precautionary and preventive principles—in environmental and cultural heritage matters—the principle of objectification of environmental protection; and the fundamental rights protected under Articles 50 and 89 of the Political Constitution.

Fernando Cruz C.

Paul Rueda L. Roberto Garita N.

Case No. 21-005756-0007-CO Decision No. 2023-012817 ADDITIONAL REASONS OF JUSTICE CRUZ CASTRO.- Disregard for the constitutional principle of technical reasonableness (principio constitucional de razonabilidad técnica) in environmental matters also constitutes a defect in the legislative procedure (vicio de procedimiento legislativo).

I joined the dissenting opinion in this action, in which, for the extensive reasons stated therein, I concluded that Law No. 9892 of August 24, 2020, entitled “Law Creating Parque Nacional Isla San Lucas,” is unconstitutional. That opinion essentially bases this finding of unconstitutionality on violations of the principles of progressivity and non-regression in environmental matters; the precautionary and preventive principles—in environmental and cultural heritage matters—the principle of objectification of environmental protection; and Articles 50 and 89 of the Political Constitution.

Nevertheless, in addition to what was stated therein, I have deemed it appropriate to add these further reasons in order to place the following on the record:

The principle of technical reasonableness, as a constitutional principle, requires the legislature to have a technical study before approving a law in order to demonstrate proportionality between the means selected and the proposed ends, thereby preventing the law from being irrational, arbitrary, or capricious, while also ensuring that the selected means bear a real and substantial relationship to its purpose (see decisions No. 1992-1739, No. 2018-15966, No. 2021-11957, among others). This principle therefore constitutes a constitutional standard (parámetro constitucional) (see decision No. 2001-732). That standard entails treating the absence of a technical opinion (criterio técnico) as a material defect in the legislative procedure (vicio esencial de procedimiento legislativo) (see decisions No. 2012-13367 and No. 2017-11714, the latter stating: “In environmental matters, this Court has required technical studies before protected areas may be reduced and has concluded that the omission of such studies constitutes a material defect in the legislative procedure.”).

Thus, this Court has specified that a technical or scientific study is necessary in certain matters and has therefore understood such technical support to form part of the constitutional principle of technical reasonableness. Accordingly, this Court has stated that “Technical studies are necessary when an express provision so requires (for example, in environmental matters) or when the subject matter requires them, lest discretion be transformed into arbitrariness.” (see decision No. 2018-00230, issued at 10:40 on January 19, 2018). Regarding the constitutional principle of objectification of environmental protection, also known as the principle of adherence to science and technology (principio de vinculación a la ciencia y la técnica), see decisions No. 2022-23307, issued at 13:40 on October 25, 2022; No. 2010-000075, issued at 15:01 on January 6, 2010; No. 2012-013367, issued at 11:33 on September 21, 2012; No. 2013-005964, issued at 15:05 on April 30, 2013; and No. 2018-007978, issued at 12:45 on May 18, 2018.

In this matter, Law No. 9892 of August 24, 2020 changed the management category (categoría de manejo) of a portion of the protected wildlife area “Isla San Lucas” and reduced its surface area. All of this was done without scientific studies guaranteeing that the change would not diminish the protection of Isla San Lucas’s natural heritage, because it is a protected wildlife area, and its cultural heritage, because it has been declared cultural heritage. This requirement imposes a clear restriction on the exercise of political power, in this instance that of parliament. It may not adopt a decision on a matter as sensitive as the environment without a prior technical study. In this case, political power is made subject, in the interest of higher-order interests, to scientific judgment. This restriction has been disregarded in this case, as in others in which this Court has adjudicated environmental issues. Political decision-making, as important as it is, must be subject to scientific judgment in order to protect higher-order interests.

Furthermore, this reveals a violation of the following environmental principles: the preventive principle (principio preventivo) (where there is certainty regarding possible environmental harm, the activity causing the harm must be prohibited, restricted, or made conditional upon compliance with certain requirements). In general, this principle applies when risks have been clearly defined and identified as at least probable; likewise, this principle is useful when there are no technical reports or administrative permits guaranteeing the sustainability of an activity, but there are sufficient grounds to foresee potential adverse impacts), the precautionary principle (principio precautorio) (where there is a threat of serious and irreversible harm, the lack of absolute scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The principle is based on reasonable scientific uncertainty together with the threat of serious and irreversible environmental harm), the pro natura principle (principio pro natura) (in cases of doubt or uncertainty, disputes must be resolved and rules must be interpreted in favor of environmental protection and conservation), and the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental) (or the principle of reliance on science and technology (principio de la vinculación a la ciencia y a la técnica), under which decisions in this field must be supported by technical studies, both with respect to individual acts and provisions of a general nature—whether statutory or regulatory—from which derives the requirement of “reliance on science and technology,” thereby constraining the Administration’s discretion in this field. It has been defined as Principle 17 of the Rio Declaration on Environment and Development).

When faced with a situation requiring application of the precautionary principle, the legislature must refrain from legislating to the detriment of environmental protection or through rules that entail a regression in such protection. Therefore, application of the precautionary principle means that, where there are indications that a particular activity could plausibly cause serious and irreversible environmental harm, the lack of absolute scientific certainty or evidence in that regard does not relieve anyone of the obligation to prevent environmental harm. Furthermore, pursuant to the theory of Drittwirkung der Grundrechte, this principle extends its guiding function to the conduct of both public-law and private-law persons.

The foregoing therefore entails a violation of the constitutional principle of technical reasonableness (principio constitucional de razonabilidad técnica), and the legislature thereby committed a substantial procedural defect rendering the law unconstitutional, not only on substantive grounds, as stated in the dissenting opinion (voto salvado), but also on procedural grounds, as I set forth in these additional reasons.

The tension between scientific reasons and short-term political interests is particularly evident in environmental matters, because interests unrelated to the protection of the Earth are intended to prevail despite the scientific criteria contradicting that aim. The delicate balances sustaining the environment and the health of Mother Earth require the wisdom of science, including refraining from action when there is even doubt as to environmental harm. This wise rule is strained or postponed whenever political exigencies demand it. It is a familiar story in the protection of our common home.

Fernando Cruz Castro 1 Telephone numbers: 2549-1500 / 800-SALA-4TA (800-7252-482). Fax: 2295-3712 / 2549-1633. Website: www.poder-judicial.go.cr/salaconstitucional. Address: (Sabana Sur, Calle Morenos, 100 mts. south of the Perpetuo Socorro church). Filing office for matters involving vulnerable groups: Edificio Corte Suprema de Justicia, San José, Distrito Catedral, Barrio González Lahmann, streets 19 and 21, avenues 8 and 6 [1] See in this regard: PNUD et al. The ABCs of Nonessential Services and Activities in the Protected Wildlife Areas of the Sistema Nacional de Áreas de Conservación. Costa Rica, febrero 2021. page 39. Available at: https://www.undp.org/es/costa-rica/publicaciones/documento-de-trabajo-abc-deservicios-y-actividades-no-esenciales-en-las-areas-silvestres-protegidas

Res: 2023-012817 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las catorce horas con cuarenta minutos del treinta y uno de mayo de dos mil veintitrés.

Acción de inconstitucionalidad que se tramita en el expediente nro. 21-005756-0007-CO interpuesta por ANAIS VILLALOBOS KONG y ÁLVARO SAGOT RODRÍGUEZ, en el orden respectivo portadores de las cédulas de identidad nros. 105390615 y 203650227; contra la totalidad de la Ley de Creación del Parque Nacional Isla San Lucas, ley nro. 9892 del 24 de agosto de 2020 y, en específico, los artículos nros. 1, 2, 3 último párrafo, 5, 6, 7, 9 inciso d), 10, 14 inciso g), 15, 16, 17 y 18, a la cual se le acumuló la acción nro. 21-006852-0007-CO promovida por GUSTAVO FLORES YZAGUIRRE, portador de la cédula de identidad nro. 107060843.

Resultando:

1. 1Por escrito recibido en la Sala 23 de marzo de 2021, la parte accionante formula acción de inconstitucionalidad contra la totalidad de la Ley de Creación del Parque Nacional Isla San Lucas, ley nro. 9892 del 24 de agosto de 2020, por violación a los principios de no regresión, de objetivación, precautorio y de progresividad, así como del derecho a un ambiente sano y ecológicamente equilibrado, por cuanto, sin justificación técnica, se disminuyó el área de un área silvestre protegida y se creó un tipo de área con fines diferentes a los que deben existir dentro de un parque nacional. Exponen: “Consideramos que estamos legitimados directamente para gestionar esta acción de inconstitucionalidad pues en este asunto se involucran los intereses difusos ambientales, en el tanto que alegamos, entre otras cosas, una disminución injustificada y sin estudios de una ASP. Además, porque se dio un cambio de categoría de manejo sin que previamente existieran estudios y evaluaciones que fundamentaran la toma de decisiones legislativas, amén de que incluso ahora, con esta ley, se está permitiendo hacer cambios de uso de suelo dentro de una (sic) área en un parque nacional al violación (sic) a la jurisprudencia constitucional reiterada, que a su vez es contraria también a nomas constitucionales y convencionales.Como se verá en nuestro análisis, mediante esta ley, se está permitiendo intervenir un parque nacional con obras comerciales, turísticas y atracaderos, afectando inconstitucionalmente todo ello la biodiversidad marina y la terrestre. Todo lo anterior, pone en riesgo nuestro patrimonio natural y podría privar en un futuro incluso a generaciones que no han nacido de disfrutar una ASP. Nuestro fundamento está en lo dispuesto en los numerales 7, 21, 50 y 89 Constitucionales y el artículo 75, segundo párrafo de la Ley de la Jurisdicción Constitucional. Lo antes expuesto, queda ampliado con nuestros argumentos que exponemos abajo. NORMA CUESTIONADA "CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS Ley No. 9892 de 24 de agosto de 2020 Publicado en el Alcance No. 248 a La Gaceta No. 233 de 21 de setiembre de 2020 LA ASAMBLEA LEGISLATIVA DE LA REPÚBLICA DE COSTA RICA DECRETA: CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS (…) MOTIVOS DE LA ACCIÓN DE INCONSTITUCIONALIDAD PRIMERO: REDUCCIÓN DEL ÁREA SILVESTRE PROTEGIDA SIN JUSTIFICACIÓN La ley que ahora se cuestiona, establece en el numeral tres las 3 delimitaciones fragmentadas del nuevo parque nacional de la siguiente manera: "Artículo 3.- Delimitaciones.El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera. La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el 0002) de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo. Edición 3-IGNCR en la latitud norte 9 ° 55' 55 " - 9 57' 20" y longitud oeste 84°53 ' 23 " con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha). El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad de hasta tres metros (3 m) …" (El resaltado es nuestro) Como se aprecia, se señala que la sección marina estará compuesta alrededor de la isla con una profundidad HASTA DE TRES METROS SOLAMENTE. Pero resulta, que ello implicó una reducción del área marina que no encuentra ninguna justificación dentro de la ciencia y la técnica, puesto que esta misma Sala, en voto constitucional N° 2010-01 3090 había dispuesto que el área marina de la Isla San Lucas iba a ser TODO el sector marino, hasta una profundidad DE SEIS METROS.El voto mencionado señalaba en lo que nos interesa en el Por Tanto: "Se declara parcialmente CON LUGAR la acción. En consecuencia se anula por inconstitucional el artículo 1° del Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) de 25 de enero de 2008, publicado en el Alcance 10 a La Gaceta No. 28 del 8 de febrero de 2008, en cuanto modifica únicamente el inciso A. del artículo I del Decreto Ejecutivo No. 33327, MIMAE, salvo la adición de la porción de agua que se agrega al Refugio Nacional de Vida Silvestre Isla San Lucas y el apartado B que mantienen vigencia" (El resaltado es nuestro) Y resulta que el apartado B de dicho decreto señalaba: "B. Un área marino-costera comprendida por las aguas alrededor de la Isla San Lucas hasta una profundidad de 6 m" (El resaltado es nuestro) Lo anterior implica una discrepancia de tres metros en principio, entre la nueva ley y lo que existía anteriormente, que disminuye el ASP sin justificación alguna y ello es inconstitucional.La sección adicionada B señalaba también en el decreto: "Adiciónese al Refugio Nacional de Vida Silvestre Isla San Lucas una porción de agua que se describe por las siguientes coordenadas Costa Rica Lambert Norte:

Vértice Coordenada X Coordenada Y Condición 1 434875 213534 Vértice I, punto de inicio en el límite de la curva de nivel de seis metros de profundidad, referencia donde se inicia el límite de ampliación, en el agua, pasando por los vértices 2 al 8, incluyendo el islote de Pan de Azúcar.

2 434894 213171 3 434948 213118 4 435095 213070 5 436228 212316 6 437426 211924 7 437829 211853 8 439109 213551 A partir del Vértice 9, hasta el Vértice 1 que es el punto de inicio, se define el límite sobre la curva de nivel de los seis metros de profundidad, pasando por los vértices 9 al 14, generando un área adicional de 210 hectáreas.

9 438380 212952 10 437747 2 I 2726 11 437155 212649 12 436706 212792 13 435921 212855 14 435790 2 I 3026 …" (El resaltado es nuestro) Como se aprecia, estamos hablando, sin temor a equivocamos, de una delimitación en el área m que pertenecía al ASP de hasta 6 metros de profundidad. Incluso el voto constitucional también fue claro al decir "Se declara parcialmente CON LUGAR la acción. En consecuencia. se anula por inconstitucional el artículo 1 ° del Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic)... salvo la adición de la porción de agua que se agrega al Refugio Nacional de Vida Silvestre Isla San Lucas" (…) Por lo que también se puso en riesgo esa sección que se adicionó al Refugio y así pedimos declararlo. Veamos que no hay justificación técnica, ni científica para hacer lo anterior y ello transgrede el principio de tutela científica en el tanto que hubo una disminución, sin mediar argumento, ni estudio alguno.

Resumiendo: por todo lo dicho, cuando se dice en la ley 9892, en su artículo 3, que el límite marino lo marca una profundidad de hasta tres metros, tenemos que se generó una reducción de área que nunca tuvo una (sic) sustento que validara el por qué se llegó a tomar esa decisión legislativa y esto es regresiva y atenta contra los numerales 50 y 89 constitucionales en el tanto que hay desprotección de la biodiversidad y también del paisaje marino costero. Siendo que es claro que existen humedales protegidos en la Isla San Lucas, tenemos que la anterior reducción de área incluso atenta con las normas 7 y 50 constitucionales vinculadas a la ratificada Convención sobre Conservación de Humedales de Importancia Internacional y Sitios para Aves Migratorias (RAMSAR) en el tanto que en su numeral I establece que los humedales se extienden hasta una profundidad de 6 metros en marea baja. (…) Destacamos también lo de marea baja, pues en la nueva ley solo se habla de una protección un área de hasta tres metros de profundidad, pero NO se expuso nada sobre si los 3 metros comienzan a contabilizarse en marea baja, o en la alta y ese solo hecho es fundamental en esta acción puesto que ello determina mayor, o menor protección de áreas y la confrontación con una norma prevista en un instrumento internacional ratificado.

Por otro lado, es que esos humedales de Isla San Lucas ya estaban reconocidos por norma reglamentaria, así que no hay justificación para hacer lo que hicieron los diputados y luego el mismo Poder Ejecutivo, que pudo haber vetado la ley, pero no lo hizo. Por ello alegamos que se debe declarar la inconstitucionalidad de toda la ley, pues al reducir el área marina en la norma 3 se altera todo el cuerpo normativo de forma sistémica. Y es que precisamente, la razón de ser de esos 6 metros de profundidad en marea baja encuentra justificación no solo en el voto constitucional citado, sino en convención RAMSAR y por ello, al cercenarse dolosamente y de mala fe las áreas de humedal apreciamos la clara inconstitucionalidad y así pedimos resolverlo. También obsérvese la vinculación sobre la imponencia y el reconocimiento de los humedales de San Lucas, que incluso en los "considerandos" del derogado decreto No 33327 sobre el Refugio Nacional de Vida Silvestre de la isla, se señalaba, en su delimitación, que se comprendía el área de Isla San Lucas y el área marino costera, pero se agregaba que se declaraba de interés público la actividad, o proyecto orientado a recuperar, conservar la calidad de aguas y recursos naturales del Estero Puntarenas, cuando decía: (…) Es decir, que con la afectación negativa hecha mediante la ley en su norma 1 y especialmente en el artículo 3 se podrían alterar ciclos vitales y ecosistemas valiosos que funcionan ecosistémicamente junto con los humedales del Estero de Puntarenas, pero al parecer nada de ello pesó en los diputados que crearon el nuevo cuerpo legal.

Abonando a lo anterior, tengamos presente que vinculada por conexidad a las normas 50 y 89 constitucionales, se debe ponderar la norma prevista en la ley Orgánica del Ambiente, artículo 40 que habla sobre los seis metros de profundidad en marea baja de los humedales, o el artículo 41 que establece que aún los humedales no protegidos, o declarados por las leyes tienen una protección especial al ser de interés público ambiental. Por ello consideramos que existe una clara inconstitucionalidad en la ley que amerita declarar como inconstitucional no solo la norma 3 en su párrafo final de este nuevo cuerpo normativo cuestionado, sino todo el texto de esa ley 9892, pues el error en los límites abarca la totalidad de los artículos relacionados, dado que no puede haber protección, si se dejan por fuera decenas de hectáreas marinas en biodiversidad que antes estaban protegidas. El error no se resuelve con una sentencia interpretativa, pues estamos ante una situación grosera de desprotección ecosistémica En la misma línea anterior, debemos mencionar una violación a las normas 7, 50 y 89 constitucionales, vinculadas al Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central, aprobado por Ley No. 7433, que define la conservación de la siguiente manera: "Preservación, mantenimiento, restauración, y uso sostenible de los elementos de la biodiversidad", pues es manifiesto, que si se excluye un área sin justificación, se está poniendo en desprotección ecosistemas valiosos para las aves y vida marina, dentro de un área silvestre protegida en Costa Rica.

Veamos que con ello se está ante afectaciones a diferentes formas de vida de todo el Golfo y consiguientemente, también se afecta un sitio que es considerado como un criadero de diversas especies marinas que se reproducen en la zona. Las afectaciones de ese criadero tienen también repercusiones negativas para los pescadores artesanales y sus familias actualmente y para las generaciones futuras por consiguiente. Es manifiesto que al disminuir el área se violenta también el Convenio sobre la Diversidad Biológica (Ley No. 7416 de 30 de junio de 1994), en relación con el deber del Estado de administrar los recursos importantes para conservación de la diversidad biológica y proteger los ecosistemas y hábitats naturales, conforme lo desarrolla el artículo, 8 (conservación in situ) incisos d) y e) en el tanto que se desprotegen las áreas protegidas con la reducción narrada donde se desconoce cuál fue el criterio que imperó y también existe una gran incertidumbre en el impacto negativo general en el área por la acción tomada También hay una inobservancia del numeral 11 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales.

"Protocolo de San Salvador" (…) Con la ley 9892 más bien se ha caído en una desprotección de una ASP con la reducción, donde ni siquiera se contempló que cualquier medición del ASP debía partir desde la marea baja. En la Convención para la protección de la Flora de la Fauna y de las Bellezas Escénicas Naturales de los países de América (Ley 3763) se expone de forma contundente: "ARTÍCULO III. Los Gobiernos Contratantes convienen en que los límites de los parques nacionales no se serán alterados, ni enajenada parte alguna de ellos sino por acción de la autoridad legislativa competente" Ahora, si bien en este caso fue la Asamblea Legislativa quien modificó y delimitó el nuevo Parque, no por ello se justificó el por qué se hacia la reducción del área silvestre protegida y ello debe quedar bien claro, pues justifica la declaratoria de inconstitucionalidad por violación al principio de proporcionalidad y al de razonabilidad.

También señalamos, que con la disminución del área silvestre protegida sin estudios, ni justificación, encontramos violaciones al principio precautorio y al de no regresión, puesto que evidentemente los diputados y posteriormente el Poder Ejecutivo se apoyaron solo en la discrecionalidad para la disminución, existiendo normas y jurisprudencia clara y esto no puede ser permitido, pues atenta incluso contra la protección intra y extrageneracional como hemos señalado. Especial mención merece la violación al artículo 26 de la Convención Americana sobre Derechos Humanos (Ley No. 4534) que señala: (…) Tiene que ver esta Autoridad, que al disminuirse el área de un área silvestre protegida sin justificación alguna y sin estudios, se violenta abiertamente el principio de progresividad en cuanto a la protección ambiental que merecen sitios como los parques nacionales y sus humedales, por ello debe acogerse sin lugar a dudas en esta acción y así pedimos que se exponga de forma expresa Deseamos agregar también que se debe valorar, junto a lo expuesto, el numeral 7 constitucional y la Opinión Consultiva No. OC-23-17 de la Corte Interamericana de Derechos Humanos, puesto que en ella se expone: (…) Rogamos a esta Autoridad que disponga que en este caso estamos ante una violación al principio de irreductibilidad de las AREAS (sic) SILVESTRES PROTEGIDAS por disponer en el artículo 3 de marras, que: "el área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m)" Véase que los 6 metros previstos en el voto constitucional N° 2010-013099 pasaron de lado, amén de todo lo dicho supra previsto en el bloque de convencionalidad así como lo que señalan las normas de derecho interno relacionadas por conexidad con las normas 50 y 89 constitucionales.

De hecho el Decreto Ejecutivo "N° 34282, que fuera declarado como inconstitucional parcialmente incluso contemplaba como parte del Refugio Nacional de Vida Silvestre Isla San Lucas, el islote Pan de Azúcar, pero ahora no sabemos cómo quedó esa sección, pues la ley fue omisa y por ello se debe considerar que esa porción fue excluida también. Finalmente, pedimos considerar transgredida la norma 35 de la Ley Orgánica del Ambiente, que por conexidad está vinculada al numeral 50 y al 89 constitucionales en el tanto que al reducirse el área del ASP se violentaron los objetivos de toda área silvestre protegida, pues deja desprotegida una sección muy grande que tiene importancia por la biodiversidad ahí comprendida que quedaría en manos de pescadores irresponsables y de personas que no tendrán limites en hacer acciones contrarias a la protección. Esta Sala ha señalado sobre las reducciones de la AREAS (sic) SILVESTRES PROTEGIDAS y los estudios técnicos: (…) SEGUNDO: CAMBIO DE CATEGORÍA DE MANEJO Y LA INCLUSIÓN DE UNA ZONA TURISTICA SIN ESTUDIOS En esta sección tenemos dos situaciones sin estudios, la primera es que se cambia la categoría de manejo sin estudios y la segunda es que ese cambio de categoría, contrario a mejorar la situación, perjudica el ASP, puesto que se dispuso, agregar un uso "turístico comercial", que se quiere teñir como protector, al agregarse la palabra sostenible a lo turístico, pero todo el cambio encubre un espíritu de fines comerciales, donde antes no existía esa opción, tal y como pasamos exponer.

Ejemplificando lo anterior, destacamos que en el artículo 2 de la ley se habla incluso de una declaratoria de interés nacional y de alta prioridad al desarrollo turístico sostenible, para que se aprecie lo que decimos. Y de hecho la palabra "sostenible" es usada 7 veces para dar ese halo supuestamente "protector". Véase que la Isla San Lucas era hasta antes de la promulgación de la Ley No. 9892 del 24 de agosto de 2020, un Refugio Nacional de Vida Silvestre, llamado: Refugio Nacional de Vida Silvestre Isla San Lucas. Para cambiar la categoría de manejo, debieron de existir los estudios necesarios que justificaran el por qué era lo mejor crear un Parque Nacional, pero ese balance científico nunca existió en el expediente ante la Asamblea Legislativa. Véase que de la misma manera, que para disminuir una AREA (sic) SILVESTRE PROTEGIDA se exigen estudios, también deben existir los que validen el cambio a una categoría como la de Parque Nacional, pero como dijimos en este caso nada existe en el expediente legislativo.

Es decir, que sumado al cambio de categoría sin estudios, que nos parece inconstitucional, lo más grave de esta situación es que ustedes nunca encontrarán la justificación dentro de la ciencia y la técnica que motiva a agregar un uso comercial y turístico en el nuevo parque nacional. Se señala que estamos ante una situación grave, en el tanto que ese uso, con fines comerciales y turísticos, no está amparado, ni fundamentado en nada y en ese tanto existe una inconstitucionalidad. En todo caso, si ustedes pueden leer la ley cuestionada, encontrarán que el espíritu de la misma es convenir esta ASP en un sitio con usos "comerciales y turísticos" disfrazados bajo el concepto APROVECHAMIENTO TURISTICO SOSTENIBLE (…) Este nominal 6 tiene cuatro apartes o incisos descriptivos: Sobre el aparte 1) agregamos que habla de un sitio con matices históricos por existir edificaciones del antiguo presidio y se señalan las georeferencias (sic), pero ¿dónde están los estudios arqueológicos que justifican todo lo anterior?

¿Por qué el área no fue más amplia? Al menos dentro del expediente legislativo no existe nada y esa falencia lleva implícita una violación al principio de tutela científica En la isla se han encontrado restos de tiestos, enterramientos y obras en lítica de indígenas y por ello también vale cuestionarse: ¿Por qué si existen otras áreas con restos arqueológicos de culturas originarias, solo se especifica uno de los puntos? ¿Quién y por que (sic) se excluyeron otros sitios de valor histórico arqueológico en la isla? De hecho solo se georeferenció (sic) el punto más reciente históricamente hablando, que es el centro penal. ¿Dónde está el informe actualizado del Museo Nacional de Costa Rica? Todo acá son dudas que obligan a acoger la inconstitucionalidad. Hasta el momento se sabe de 8 sitios arqueológicos con restos de actividad indígena debidamente marcados en toda la Isla San Lucas y esto conviene este asunto en un punto muy delicado, pues es injustificado que solo se señalen georeferencias (sic) para el área del centro penal, cuando hay más sitios de importancia como dijimos.

En el aparte b) se habla de una "zona de recreo" que se denomina playa El Coco y la demarca, pero esa demarcación, aunque tenga georeferencias (sic) no implica por sí misma un estudio con una justificación dentro de la ciencia y la técnica del por qué se hizo la misma y en ello encontramos otra inconstitucionalidad Véase que debió existir un estudio sobre biodiversidad terrestre y costera que justificara el por que (sic) se determinó ese sector y no otro, pero como hemos dicho, no existe nada dentro del expediente y esa incerteza nos lleva a concluir que se eligió un sector de la playa El Coco por mera discrecionalidad para declararla con ese uso dentro de un PARQUE NACIONAL COMO ZONA DE RECREO y ello no debe ser permitido. Debe saberse que el cementerio del centro penitenciario está ocupando un sector de la playa Cocos y también existe un exuberante bosque sempervirente en esa playa junto en un gran sector de bosque caducifolio que llega hasta donde la marca alta lo permite por lo que un proyecto turístico en el 2021 implica eliminación de árboles (…) Es decir, la regeneración del bosque ha tomado la playa Cocos, pero resulta que para los diputados, esa playa debe ser de uso para recreo, pero sin ver los impactos, ni existir estudios.

En el aparte c) se detallan unas coordenadas para hacer senderos, pero las implicaciones biológicas y el impacto ambiental de esos senderos no tienen justificación científica tampoco. Finalmente, el aporte d) es altamente peligroso, pues habla de una sección de agua o "sector de aguas", pero si a esto le agregamos que el numeral 3 de la ley se redujo la sección marina de 6 a 3 metros de profundidad, tenemos una incerteza científica inmensa por falta de estudios y así pedimos decirlo. Veamos además que esa "sección de aguas" estaría circunscrita a las georeferencias (sic) dichas, pero no tiene un fundamento para existir y si le agregamos que ahí existirán muelles y atracaderos, como lo determina el artículo 16 llegamos a un punto clímax de posibles impactos ambientales negativos que nunca fueron justificados de previo como debió ser considerado. Veamos que la norma 16 habla de la posibilidad de hacer varios muelles y atracaderos en un punto donde antes no existía esa opción cuando esa ASP era un refugio de vida silvestre.

Por lo anterior encontramos falencias que llevan a determinar que los artículos 3 en su último párrafo, 6 y 16 de la ley 9892 son absolutamente inconstitucionales por no existir estudios que justifiquen lo ahí preceptuado. Concluyendo a lo anterior, agregamos que de los artículos anteriores tenemos también claramente que existe un área diferenciada y demarcada en la misma ley 9892. Dicha área, donde se ubican los 4 apartes es considerada como una de “afectación” que tiene matices cuestionables que nunca fueron justificados en su totalidad, ni de forma independiente como expusimos y ello conlleva a una inconstitucionalidad por violación al principio de objetivación y porque la misma palabra afectación no rima con lo que debe existir y estaría permitido dentro de un parque nacional. Y es que los diputados no tenían potestades para jugar, de la manera que lo hicieron, con el Ordenamiento Jurídico, pues ello escapa a sus competencias.

Véase por ejemplo que el tipo de "afectaciones" de los apartes b) y d) en todo caso, además de la falta de estudios, chocan dramáticamente con la Ley del Servicio de Parques Nacionales en su artículo 8, inciso 15 relacionado con el artículo 12 de ese mismo cuerpo legal por ello esa norma 1, la 3 en su último párrafo, la 6 y la 16 de la ley 9892, tienen serios vicios de inconstitucionalidad. Recordemos que en parques nacionales NO está permitido otorgar concesiones fuera de las instalaciones para el servicio del propio parque y solo se permite hacer ecoturismo, investigación, talleres y eventualmente hacer aprovechamiento del recurso hídrico pero nada más, pero jamás sería posible darle los fines comerciales en muelles, atracaderos, etc. que podría autorizar la Junta que administrará esa ASP. Sobre esto ampliaremos adelante. TERCERO: FINES COMERCIALES DISFRAZADOS DE FINES SOSTENIBLES EN LA FRAGMENTACIÓN DEL ASP.

(…) se ha pasado de un refugio de vida silvestre, a un parque con zona turística, donde se permitirán muelles, atracaderos, servicios de alimentación y demás facilidades marítimas, todo ello nummerus (sic) apertus como si fuera una especie de parque de diversiones, olvidando la razón de ser y los objetivos de estas ASP, trayendo todo lo anterior contaminación sónica en el ecosistema marino por los motores de las lanchas, jet ski y botes que lleguen al sitio, contaminación lumínica, contaminación con aceites y combustibles de los barcos, impacto en suelo marino en humedales, sedimentación. etc. Todo lo anterior contrasta abiertamente con el numeral III de la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, que señaló como una obligación internacional para Costa Rica, para que los parques se destinaran a protección y restauración de sus áreas y que estaba prohibido establecer actividades comerciales.

El espíritu de lo establecido en el instrumento internacional señalado es proteger los ecosistemas y no ofrecerles el mejor postor en concesiones como espacios para hacer actividades turístico/comerciales alejadas de los servicios no esenciales y ese cambio y nuevo uso "turístico sostenible" es abiertamente inconstitucional. Para ejemplificar aún más el uso comercial dentro de esta ASP tenemos que ver que ordinal l4 de esa ley 9892 se establece en el inciso g) como una de las albores y competencias de la Comisión del Fideicomiso que administrará el Parque: "g) Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes (…)" En el numeral 9 de este nefasto cuerpo legal nuevo se señala como deberes de la Junta Directiva que administrará el Parque: "Articulo 9.- (Cometidos y potestades.

La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones: ... d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla." Pero repetimos que conforme al artículo III de la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, es totalmente prohibido cualquier uso comercial dentro de un Parque. Véase también el artículo 12 de la Ley del Servicio de Parques Nacionales que prohíbe hacer cualquier tipo de instalación diferente a las que se ocupan para el Parque. Pero no obstante lo anterior, como ustedes pueden leer, la palabra "comercial" está en varias partes de la ley como una actividad permitida y es que si por norma convención se prohibiría explotar un parque con fines comerciales.

¿cómo es que acá ya estamos ante esa apertura? El parque nacional Isla San Lucas debería estar para proteger la rica biodiversidad de la isla y sus exuberantes paisajes pero contrario a ello, ahora se busca otra vez más, habilitar fines de lucro por medio de concesiones evidentemente. Tengan presente que en el pasado hubo más descaro al pretender hacer hoteles y casinos, pero ahora tratan de disfrazar algunas las palabras para explotar otra vez la isla desde el punto de vista comercial. Incluso en la conformación de la junta directiva curiosamente ustedes no ven a nadie del SISTEMA NACIONAL DE AREAS (sic) DE CONSERVACIÓN (SÍNAC) que son quienes tienen a cargo las labores de control y protección en las diferentes ASP en el país por disposición legal. Tampoco ustedes notaran que exista un representante de grupos ecologistas, o del Consejo Regional de Áreas de Conservación, pero si ven que existirá un miembro de la Cámara de Turismo de Puntarenas.

La razón de lo anterior es clara y no es otra más, que buscar los fines comerciales posibles que son lo que están por delante, por sobre la protección de la biodiversidad (…) Es decir, que los Parques Nacionales son sitios destinados "...para la protección y conservación de las bellezas escénicas naturales y de la flora y fauna de importancia nacional... " donde la visitación del público está permitida, pero ello no implica per se una apertura para hacer varios muelles, o atracaderos y ahí es donde se complica aún más la situación., pues es claro que con esta nueva Ley se estaría ante posibles daños a ecosistemas marinos de humedales, también lo anterior podría llevar a la tala de árboles y eliminación de biodiversidad y esto no fue valorado con estudios y simplemente se pensó hacer un cambio de categoría de manejo y en la creación de una "zona turística", pero no se pensó en los impactos negativos y ello violenta el principio precautorio y el de objetivación.

Por ello pedimos que se declaren como inconstitucionales no solo las normas 3 último párrafo y el ordina 16 de la ley 9892 que establecen el cambio de categoría, junto con la división de zonas, sino la de toda la ley, puesto que esos artículos son estructurales a la normativa cuestionada. Como dijimos, la misma Ley del Servicio de Parques Nacionales, que por conexidad está vinculada a las normas 50 y 89 constitucionales. NO prevé en ningún lado que en los Parques Nacionales puedan existir zonas turísticas (comerciales) como las contemplan las normas 3 último párrafo, 9 inciso d. 14 inciso g y 16 de la ley 9892 y por ello encontramos otro fundamento para la inconstitucionalidad reclamada. Tengamos muy en cuenta que el ordinal 8 de la Ley del Servicio de Parques Nacionales prohíbe talar (inciso 1) hacer cualquier tipo de contaminación (inciso ll) y hacer cualquier tipo de actividad comercial (inciso 15).

Ahora, sépase que la Universidad Nacional publicó en el 2007 una investigación del Instituto Internacional de Conservación y Manejo de Vida Silvestre (ICOMVIS-UNA). Que evidenció la numerosa y valiosa biodiversidad de la Isla San Lucas. El estudio recalcó la presencia de varios manglares en los que habitan 6 especies de moluscos; 63 de peces marino costeros. distribuidos en 29 familias; 17 de reptiles, entre ellas, la becker (Boa constrictor), guardacaminos (Conophis lineatus) y ciega (Loxocemus bicolor), 40 de aves, 9 migratorias y 31 residentes, como la fragata (Fragata magnificens), pelicano (Pelecanus occidentales), tortolita colilarga (Columbina inca), el gallinazo (Coragyps an-ams). También se detalló sobre Venados cola blanca y congos. Se señala en el estudio, que el mayor número de especies se localiza aledaño a la infraestructura que antes ocupaba la penitenciaria, pues posee más variedad de recursos como alimento, agua y refugio, que son aprovechados por las diversas especies.

Pero resulta que esta será una mua turística tal y como lo dice la nueva ley y entonces ¿cuál será el impacto de esta biodiversidad? Nada de ello se sabe. Continúa señalándose en el estudio que se encontraron, más de 90 especies vegetales, todas propias de la zona, y distribuidas en 6 tipos de cobertura boscosa, entre ellas la siempre verde y la caducifolia. También se hallaron al menos 8 especies de murciélagos, la mayoría en las cercanías del antiguo penal, donde duermen grupos de varias especies. Se alimentan en al (sic) mayoría de frutos, tarea importante porque se encargan de transportar semillas hacia diferentes sitios y contribuyen así en la recuperación de la vegetación original de la Isla. También cabe destacar que en el "Estudio de línea de base de la flora y Fauna del RNVS Isla San Lucas, Costa Rica" elaborado como dijimos por el mencionado Instituto Internacional en Conservación y Manejo de Vida Silvestre de la Universidad Nacional, se determinó que la cobertura boscosa de la Isla la cubre en un 98%, terrenos y que por esta condición, son inalienables y parte del Patrimonio Natural del Estado.

(Véase cuadro 1). Y acá nos preguntamos. ¿cuántos arboles se talarán para hacer esa zona turística dada la cobertura actual? Y no hay respuesta. Véase que la cobertura boscosa ha ido en aumento y para cualquiera que visite la isla notará que ahora, en el 2021, existe un bosque en toda la isla prácticamente (…) Estos autores incluso aportan un mapa sobre la regeneración boscosa en la isla que ratifica que prácticamente toda la isla tiene cobertura boscosa. Incluso ilustran el avance del humedal a través de los años. (Ver anexo) Y es que todo ese bosque al parecer nunca fue preocupación, ni para el Poder Ejecutivo. ni para el Legislativo y por ello se justifica la declaratoria de inconstitucionalidad, dado que no hay estudios que avalarán lo que se autorizó. Por todo ello, al autorizarse también a hacer muelles y otro tipo de infraestructura en una ZONA TURISTICA, se cambia toda la lógica de protección que existe en nuestro Estado y que está respaldada incluso por convenciones internacionales debidamente ratificadas como las que señalamos arriba.

Por esto es que insistimos que es inconstitucional el cambio de categoría y también el permitir una zona turística dentro de un Parque Nacional con infraestructura que conlleva a impactar de forma negativa los ecosistemas marinos y terrestres. Es claro que los usos comerciales se autorizaron inconstitucionalmente pues los mismos están prohibidos tanto por normas internas como por la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América y por ello toda la Ley debe ser declarada como inconstitucional. No se puede permitir en nuestro Estado que se establezca una apertura en un parque nacional con una zona turística donde se permita un uso comercial y donde para poder lograr este se tengan que tener impactos negativos por contaminación marina con aceites, combustibles, ruido, infraestructura, tala de bosque, aunque sea unos pocos árboles a cortar, etc. y por ello pedimos la declaratoria de inconstitucionalidad de toda ley, pues como señalamos al inicio, el espíritu de la misma es darle relevancia a esos fines comerciales mediante la introducción de infraestructura portuaria y dentro de terrenos del parque que al fin de cuenta conllevan a un cambio de uso del suelo inconstitucional dentro de una ASP (…) Ese sitio de "manejo diferenciado" lleva implícito un cambio de uso de suelo como dijimos, con impacto negativo en un ecosistema que tiene decenas de años de estar regenerándose, luego de que se eliminó el penal, me nada de ello fue valorado y esto implica hasta cieno punto, otra reducción del ASP solapada y así pedimos declararlo (…) para este caso, debieron de existir estudios que justificara la existencia de la ZONA TURÍSTICA dentro del parque, pero al no existir, tenemos que el numeral 3 de esta ley 9892 deviene en inconstitucional (…) Por todo ello, la situación de disponerse a aprobar la creación de una zona turística (artículo 3), inmersa dentro del Parque Nacional Isla San Lucas, debe ser considerada como una disposición inconstitucional, por NO tener estudios dentro de la ciencia y la técnica que justifiquen ese fraccionamiento y en todo caso por tenerse como un USO TOTALMENTE INCOMPATIBLE con un Parque Nacional.

Finalmente, hemos mencionado en varias ocasiones la violación al numeral 89 constitucional y lo hemos hecho en el tanto que con la ley 9892 se alteraría el paisaje natural que existe en la isla y en la parte marina, que la rodea hasta una profundidad de 6 metros luego de marea baja y así pedimos contemplarlo. CUARTO: SOBRE LA JUNTA DIRECTIVA QUE ADMINISTRARÁ EL PARQUE El artículo 1 de la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América señala sobre Parques Nacionales: (…) Por otro lado, cuando cae artículo I convención habla de una “vigilancia oficial”, es claro que debemos entender que en la ley 9892 se dejó inconstitucionalmente por fuera, de la junta directiva prevista en el numeral 10 al representante del SINAC, que conforme a la Ley de la Biodiversidad, numeral 22 siguientes y concordantes, que están vinculados por conexidad con el numeral 50 constitucional, tendría que estar ahí, formando parte de ese cuerpo colegiado por ser la autoridad competente en Costa Rica que debe velar por las acciones de control y protección dentro de las ASP.

Es decir, que no hasta no señalar el ministro del MINAE estará en esa junta. Tampoco se suple el error diciendo que en el numeral 15 de la nueva ley se señala que habrá guarda parques del SINAC, pues las funciones de dirección y política deben ser asumidas desde la junta directiva y lo que el artículo 15 dicho señala es solo funciones de campo. Pero como se aprecia en la norma 10 de la ley 9892, se omitió que el representante oficial tenga participación alguna en este parque nacional. Es claro que esa norma 10 de la ley 9892 deviene inconstitucional puesto que sin razonamiento se omitió integrar a director del SINAC en la junta administrativa que administrada el Parque Nacional Isla San Lucas. Por otra pone y en la misma línea, tenemos que se omitió señalar también, en ese artículo 10, la incorporación a la junta de un representante del Consejo Regional de Áreas de Conservación, tal y como lo contempla el numeral 23 de la Ley de la Biodiversidad que por conexidad al 50 constitucional estaría vinculado.

No se justifica que la sociedad civil que participa en protección y control ambiental haya quedado excluida de esa junta directiva y más cuando por ley especial estas personas juegan un papel fundamental en la fiscalización de todas las ASP en Costa Rica. Por lo anterior consideramos que el artículo 10 de la nueva ley citada debe ser declarado como inconstitucional dado que los diputados no tienen potestad legislativa para hacer omisiones que sean contrarias a nomas expresas y menos sin justificar el por qué (sic) de la omisión. Sobre esa última exclusión dolosa en la junta directiva que administrará esta ASP tenemos que agregar que el mismo numeral 10 de la Declaración de Río 1992 señala que la mejor manera de manejar los asuntos ambientes es involucrando a la sociedad civil, de ahí que acá exista una situación contraria a lo que se requiere internacionalmente y aunque el principio 10 de Río sea soft law, es parte de una hoja de mm que se ha transgredido y así pedimos declarado, pues la nueva ley violenta un "deber ser" sobre lo que debería operar en Costa Rica y con ello se violenta también el principio de progresividad previsto en el artículo 26 de Convención Americana sobre Derechos Humanos.

La exclusión del jerarca del SINAC y otro de la CORAC a un contrasentido, pues esas instancias se encargan por disposición legal a proteger mediana: políticas la biodiversidad en las ASP y ahora parece con la ley 9892 que se ha creado, sin justificaciones técnicas, un parque nacional totalmente sui generis que choca con la Constitución y los convenios ratificados. QUINTO: INCORPORACIÓN DE OFICIALES DE SEGURIDAD PRIVADA EN UN PARQUE NACIONAL. Consideramos que la norma 15 de la ley 9892 tiene un vicio de constitucionalidad en el tanto que autoriza que personal de seguridad privada, sea integrado a hacer labores de vigilancia en el parque nacional, lo anterior, atenta incluso contra las finanzas del parque nacional, pues no se sabe de dónde se tomarán los fondos para cubrir los varios a esos oficiales. Nos parece que esa labor de vigilancia solo debe estar en manos de los guarda parques del SINAC que tienen el conocimiento, la capacitación y la sensibilidad para actuar en dentro de un parque, cosa que los oficiales de seguridad privada no. Ese nuevo cuerpo policial de seguridad solamente gene un egreso a la nueva ASP y podría traer consecuencias negativas al parque, por ello pedimos declarar ese extremo como inconstitucional también.

Nuestro Estado creó la figura de los guarda parques para dar control y vigilancia dentro de las ASP y por ello no existe razón técnica ni oportuna que justifique el crear otro tipo de cuerpo de vigilancia dentro de estos sitios. SEXTO: SOBRE LAS CONCESIONES Y LA AUTORIZACIÓN PARA HACER MUELLES Y ATRACADEROS EN PARQUES NACIONALES Debemos tener claro que en parques nacionales NO están permitidas las concesiones; únicamente están autorizadas las capacitaciones, las actividades de ecoturismo, la investigación, torres de telecomunicaciones y eventualmente el aprovechamiento del recurso hídrico conforme al numeral 18 y 18 bis de la Ley Forestal, por lo que el artículo 7 de la ley 9892 sería inconstitucional, pues esa nueva norma prevé dar "concesiones y permisos para actividades e instalaciones distintas del servicio de parques", que al fin de cuentas significan una autorización -de nuevo- solapada para permitir fines comerciales distintos a la protección y resguardo de sitios de especial protección a la biodiversidad y al paisaje, conforme a los objetivos de lo permitido en parques nacionales y otras ASP.

Consideramos que al hablarse de permitirse "concesiones y permisos para actividades e instalaciones distintas del servicio de parques" se está en el campo del abuso de la discrecionalidad administrativa legislativa y con ello se violenta la transparencia en la función pública y por esto esta norma 7 de la ley cuestionada deviene en inconstitucional, pues se atenta contra lo dispuesto en el numeral 50 constitucional, amén del artículo 89 también de la Constitución. Observemos la clara confrontación con el artículo 12 de la Ley del Servicio de Parques Nacionales. Si conjugamos la norma 7 que nos habla de concesiones y permisos distintos del servicio de parques, con los usos comerciales de las nomas 9, inciso d y el numeral 14 inciso g, se entenderá el peligroso significando comercial de esa frase de actividades e instalaciones distintos al servicio de los parques. Creemos que por lo anterior se justifica la inconstitucionalidad presente en este caso, pues la ley es perversa al introducir cambios que habilitan definitivamente fines comerciales dentro del parque.

Por otro lado, observemos que la Ley de Concesión y Operación de Marinas y Operación Atracaderos de Marinas y Atracaderos Turísticos. en su artículo primero, en vinculación con el numeral 32 de la Ley Orgánica del Ambiente que están por conexidad vinculados a los numerales 50 y 89 constitucionales, establecen una prohibición expresa de hacer los muelles y atracaderos en parques nacionales y siendo que estas leyes no han sido modificadas, encontramos una clara inconstitucionalidad y una regresión el querer disponer lo que se expuso en el numeral 16 de la ley 9892 (…) Es decir, que si estamos ante una ley que crea un parque nacional como en verdad lo es. que además está rodeado de arrecifes (Existen aproximadamente 10 arrecifes) y muchos humedales que representan según estudios del 200€ un 6.9 por ciento del territorio de la isla tenemos que es totalmente prohibido por norma expresa hace muelles y atracaderos.

Véase que la norma de la Ley de Concesión y Operación de Marinas y Operación Atracaderos de Marinas y Atracaderos Turísticos contempló de manera inobjetable la prohibición de habilitar muelles y atracaderos turísticos, no solo en parques nacionales sino que también en sitios donde existan arrecifes coralinos, entonces si San Lucas está rodeado de arrecifes coralinos, así como humedales en protección hasta una profundidad de 6 metros desde marea baja, tenemos que la ley cuestionada en su numeral 16 es absolutamente inconstitucional, por estar permitiendo infraestructura que por norma expresa sería contraria a la protección dentro de una ASP y así pedimos disponerlo. La anterior prohibición de hacer muelles y atracaderos es acorde incluso con lo dispuesto supra por en la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América que obliga a la protección y prohíbe desnaturalizar áreas y/o darles fines comerciales dentro de parques nacionales.

Igualmente con la ley 9892 y sus muelles y atracaderos se violentaría el Convenio sobre la Diversidad Biológica conforme lo desarrolla el artículo. 8 (conservación in situ) incisos d) y e) en el tanto que se desprotege de forma expresa un área silvestre protegida con rango de parque nacional. Por todo ello, tenemos que el artículo 16 N menos parcialmente- de esa ley cuestionada, violenta la Constitución Política en sus numerales 50 y 89, así como varios instrumentos internacionales ratificados (…) SEPTIMO: FINANCIAMIENTO INCIERTO Tal y como lo establece la norma 17 de la ley 9892, el financiamiento es incierto puesto que solo se señala que el sector público podría donar lo mismo que el privado. Como se aprecia en esa norma. la creación ASP genera inseguridad jurídica en la parte presupuestaria dado que se fue muy vaga por lo que al carecerse de un presupuesto se debe declarar como inconstitucional.

La norma 36 de la ley Orgánica del Ambiente que por vinculación la relacionamos al numeral 50 constitucional y aplicable a este caso, dispone que para crear nuevas áreas se debe prever el financiamiento para protegerla y manejarla, pero siendo que el artículo 3 parte final, crea una zona turística, es claro que esa sección nunca fue ponderada con un presupuesto para manejarla y desde ese punto de vista generar esa infraestructura que habla la norma 16 como muelles o atracaderos queda incierta y esta falencia presupuestaria me ver que se constituyó un parque con problemas financieros y esto hace inconstitucional la norma 17 de la ley 9892. Igualmente resulta aplicable todo lo anterior a lo dispuesto en la norma 15 respecto a la creación de un cuerpo de policial privado sin financiamiento, cuya naturaleza jurídica seria cuestionable también. Véase que se está creando un parque con una "zona turística", sin que se prevea un financiamiento concreto para poder desarrollar todo lo pertinente y ello es irresponsable pues queda a la buena de las instituciones y las empresas.

Ahora y si hablamos de que las empresas donaran un mantenimiento y hasta podrán hacer inversiones como lo dice la norma 18, podría ser porque persiguen los fines comerciales para explotar el parque nacional probablemente, lo cual es perverso, ya que queda abierta toda una plataforma para que en el sector de "aprovechamiento turístico sostenible" se desnaturalice el fin que debe existir dentro de un parque nacional. Para terminar, véase que en el numeral 5 se establece la obligación estatal de restaurar el patrimonio arquitectónico ubicado dentro de la isla, pero no se señala de donde provendrán los fondos propiamente (…) Perdimos (sic) que se acoja nuestra petición de declarar como inconstitucional la totalidad de la norma denominada: Ley de creación del Parque Nacional Isla San Lucas No. 9892. Pedimos que se diga que la ley en cuestión violenta principios básicos del derecho ambiental como el precautorio, el de no reducción de ASP sin estudios previos, el de regresión, el de progresividad, el de objetivación o tutela científica, el (sic) razonabilidad, el (sic) proporcionalidad.

Pedimos que se disponga que la ley dicha violenta no solo normas constitucionales como los artículos 50 que establecen el derecho a un ambiente sano y ecológicamente equilibrado y el numeral 89 en el tanto que desprotege el paisaje marino y el terrestre de la isla San Lucas, sino que también transgreden convenios debidamente ratificados. Que se diga que se violenta el principio de no regresión en el tanto que se rebaja el radio de protección en la parte marina de seis metros de profundidad, a tan solo tres metros, sin mediar justificación. Lo anterior incluso violenta lo dispuesto en el artículo 26 de la Convención Americana sobre Derechos Humanos que establece el principio de progresividad que debería ser un norte para nuestro Estado. Que se diga que es claro que con esta nueva ley se persiguen fines comerciales para explotar la riqueza biológica y paisajística dentro de un parque nacional y ello transgrede normas internas y convenios ratificados. Rogamos considerar cada una de las peticiones hechas al comentar las inconstitucionalidades”.

1. 2Mediante resolución de la Presidencia de la Sala de las 7:52 horas del 26 de marzo de 2021, se dio curso a la acción de inconstitucionalidad planteada por Anais Villalobos Kong y Álvaro Sagot Rodríguez, en su condición personal, contra la totalidad de la Ley de Creación del Parque Nacional Isla San Lucas, ley nro. 9892 del 24 de agosto de 2020, y en específico, los artículos 1, 2, 3 último párrafo, 5, 6, 7, 9 inciso d), 10, 14 inciso g), 15, 16, 17 y 18. Además, se confirió audiencia al procurador General de la República, al presidente de la Asamblea Legislativa, a la ministra de Cultura y Juventud, a la ministra de Ambiente y Energía, a la directora ejecutiva del Sistema Nacional de Áreas de Conservación y al presidente ejecutivo del Instituto Costarricense de Turismo. Asimismo, dispuso: “Esta acción se admite por reunir los requisitos a que se refiere la Ley de la Jurisdicción Constitucional en sus artículos 73 a 79.La legitimación de los accionantes proviene del 75, párrafo segundo, de la Ley de la Jurisdicción Constitucional, dado que acuden en defensa de intereses difusos a un ambiente sano y a la protección del patrimonio natural y arqueológico. Publíquese por tres veces consecutivas un aviso en el Boletín Judicial sobre la interposición de la acción. Efectos jurídicos de la interposición de la acción: La publicación prevista en el numeral 81 de la Ley de la Jurisdicción Constitucional tiene por objeto poner en conocimiento de los tribunales y los órganos que agotan la vía administrativa, que la demanda de inconstitucionalidad ha sido establecida, a efecto de que en los procesos o procedimientos en que se discuta la aplicación de la ley, decreto, disposición, acuerdo o resolución, tampoco se dicte resolución final mientras la Sala no haya hecho pronunciamiento del caso. De este precepto legal se extraen varias reglas.La primera, y quizás la más importante, es que la interposición de una acción de inconstitucionalidad no suspende la eficacia y aplicabilidad en general de las normas. La segunda, es que solo se suspenden los actos de aplicación de las normas impugnadas por las autoridades judiciales en los procesos incoados ante ellas, o por las administrativas, en los procedimientos tendientes a agotar la vía administrativa, pero no su vigencia y aplicación en general. La tercera es que –en principio-, en los casos de acción directa (como ocurre en la presente acción), no opera el efecto suspensivo de la interposición (véase voto No. 537-91 del Tribunal Constitucional)”.
2. 3Por escrito recibido en la Secretaría de la Sala el 5 de abril de 2021, Mario Andrés Boza Loría, cédula de identidad 102970932, manifiesta su apoyo y concordancia con los argumentos planteados en la acción de inconstitucionalidad. Agrega que: “Deseo además agregar lo siguiente: 1. Gobernanza por una Junta Directiva. Me parece muy perjudicial e inconveniente la figura de una Junta Directiva para administrar a esta área silvestre protegida (ASP). La administración de un ASP depende de un director, administrador o superintendente, el cual responde a un superior, en nuestro caso, al director del Área de Conservación respectiva, quien a su vez responde al director del Sistema Nacional de Áreas de Conservación y al ministro o ministra del Ministerio de Ambiente y Energía (Minae). Esta figura de una Junta Directiva tomando decisiones y estableciendo estrategias y políticas, crearía un desorden muy perjudicial para una eficiente administración, protección y desarrollo de San Lucas y par (sic) el logro de los objetivos de esta ASP.Veamos algunos ejemplos del desorden que se presentaría: 1.1. Quién nombra al director o administrador de San Lucas? (sic) La Junta Directiva? (sic) La ley no dice nada al respecto. Tendríamos entonces a una Junta Directiva tomando decisiones, y por otra parte, a los funcionarios arriba indicados también tomando decisiones, como les corresponde, para todo nuestro sistema de parques nacionales y reservas equivalentes. 1.2. Quién coordina la labor de los guardaparques? (sic) Quien administra debe también proteger. En todas nuestras ASP, los guardaparques dependen del director o directora del Área de Conservación y son nombrados por el Minae. En el caso de San Lucas tendríamos entonces a una Junta Directiva que por ley le corresponde "contribuir con la protección y conservación ambiental del parque nacional" y "establecer los lineamientos de protección", y por otra parte a las autoridades regulares del Minae que son responsables de la labor de los guardaparques. 1.3.Sobre este mismo tema, la ley crea más desorden en el artículo 15, al indicar que además de los guardaparques, la Junta Directiva podrá contratar la seguridad que considere necesaria. De nuevo, quién coordinaría la labor de esta seguridad extra? (sic) 1.4. Repetición innecesaria de funciones. Todas las funciones que haría la Junta Directiva para San Lucas, ya las hace el Sinac y la oficina del ministro o ministra para todas las ASP. Esto incluye definir estrategias y políticas, aprobar estructuras administrativas y planes maestros o de manejo, definir actividades turísticas y de investigación, aprobar permisos de uso y concesiones, y todo lo relacionado con los fideicomisos. Esta ley introduce una nueva figura de administración, que provocaría un desorden en un sistema que ya funciona para todas las ASP. 2. Junta asesora. Me parece que es conveniente integrar a las personas mencionadas en el artículo 10, para que colaboren con San Lucas, pero constituidas como junta asesora, no como junta directiva. 3.Fideicomiso. El artículo 13 indica que la Junta utilizaría la "figura del fideicomiso como instrumento de administración, gestión, desarrollo y mantenimiento del Parque Nacional Isla San Lucas...". La figura de un fideicomiso haciendo labores de administración y desarrollo es totalmente inconveniente. Tendríamos entonces que estas labores, según la Ley 9892, le corresponderían a la Junta Directiva, al fideicomiso y también al Minae. Obviamente esto aumenta el desorden que esta ley ha establecido. 4. Consecuencias de lo indicado. Considero que los perjuicios en contra de una buena administración de San Lucas como ASP, se traducirían en una falta de cumplimiento al artículo 89 de nuestra Constitución, en lo que se refiere a proteger adecuadamente a las bellezas naturales de esta isla y a su patrimonio histórico”.
3. 4Por escrito incorporado al expediente digital el 8 de abril de 2021, Kerlyn Jiménez Araya, cédula de identidad 604820059, requirió ser considerada como coadyuvante activa de la acción de constitucionalidad, debido a que las áreas de protección o silvestres protegidas, como en el caso del Parque Nacional Isla San Lucas, no deben ser reducidos si no hay estudios previos. Estima que la reducción del área en cuestión expone a los ecosistemas marinos a riesgos. Señala que el artículo 3 de la ley impugnada deja desprotegidas varias hectáreas de la parte marina y creó una zona especial que no debería existir.
4. 5Por escrito incorporado al expediente digital el 8 de abril de 2021, Natalia Cordero Murillo, cédula de identidad 305460641, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
5. 6Por escrito incorporado al expediente digital el 8 de abril de 2021, María Margarita Guzmán Vargas, cédula de identidad 116710433, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
6. 7Por escrito incorporado al expediente digital el 8 de abril de 2021, Jackeline Villalobos Fernández, cédula de identidad 604740002, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
7. 8Por escrito incorporado al expediente digital el 8 de abril de 2021, Josué González Prendas, cédula de identidad 208450880, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
8. 9Por escrito incorporado al expediente digital el 8 de abril de 2021, Josué González Prendas, cédula de identidad 208450880, Maggui Prendas Salazar, cédula de identidad 108590442, Marcela Jiménez Murillo, cédula de identidad 205090536, Sergio González Jiménez, cédula de identidad 116210620, Shirley Martínez Martínez, cédula de identidad 504280442, María Jesús González Jiménez, cédula de identidad 118200649, Cinthya Jiménez Murillo, cédula de identidad 204770743, Ricardo González Ávila, y Sergio González Ávila, cédula de identidad 204210198, plantean coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
9. 10Por escrito incorporado al expediente digital el 9 de abril de 2021, Noe Rivera Valverde, cédula de identidad 118300979, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
10. 11Por escrito incorporado al expediente digital el 9 de abril de 2021, Josué González Prendas, cédula de identidad 208450880, Maggui Prendas Salazar, cédula de identidad 108590442, Marcela Jiménez Murillo, cédula de identidad 205090536, Sergio González Jiménez, cédula de identidad 116210620, Shirley Martínez Martínez, cédula de identidad 504280442, María Jesús González Jiménez, cédula de identidad 118200649, Cinthya Jiménez Murillo, cédula de identidad 204770743, Ricardo González Ávila, y Sergio González Ávila, cédula de identidad 204210198, se pronuncian en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
11. 12Por escrito incorporado al expediente digital el 9 de abril de 2021, Johanna Murillo Víquez, cédula 208430431, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
12. 13Por escrito incorporado al expediente digital el 9 de abril de 2021, Alberto David Leitón Godínez, cédula de identidad 118280542, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
13. 14Por escrito incorporado al expediente digital el 9 de abril de 2021, Eduardo Josué Morales Bermúdez, cédula de identidad 208090831, plantea coadyuvancia activa.
14. 15Por escrito incorporado al expediente digital el 9 de abril de 2021, Valeria Marín Calderón, cédula de identidad 118490444, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
15. 16Por escrito incorporado al expediente digital el 9 de abril de 2021, Alessia Barletta Bogantes, cédula de identidad 118620938, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
16. 17Por escrito incorporado al expediente digital el 12 de abril de 2021, Yariel Mora Chavarría, cédula de identidad 117810211, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
17. 18Por escrito incorporado al expediente digital el 12 de abril de 2021, Yendry Calderón León, cédula de identidad 117900031, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
18. 19Por escrito incorporado al expediente digital el 12 de abril de 2021, Stacy Barrantes González, cédula de identidad 402550941, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
19. 20Por escrito incorporado al expediente digital el 12 de abril de 2021, Gabriela Rodríguez Castro, cédula 208350662, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
20. 21Por escrito incorporado al expediente digital el 12 de abril de 2021, Emily Arleth Segura Mora, cédula de identidad 305160140, José Andrés Ortiz Ureña, cédula de identidad 305020615, María Ureña Jiménez, cédula de identidad 107420506, Juan Ortiz Carrión, cédula de identidad 106140823 y Yanelli Abarca Abarca, cédula de identidad 304560865, plantean coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
21. 22Por escrito incorporado al expediente digital el 12 de abril de 2021, David Antonio Marín Zúñiga, cédula de identidad 117760021, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
22. 23Por escrito incorporado al expediente digital el 12 de abril de 2021, Kathleen Soto Fonseca, cédula de identidad 402620336, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
23. 24Por escrito incorporado al expediente digital el 12 de abril de 2021, Hellen Barrantes Murillo, cédula de identidad 208450961, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
24. 25Por escrito incorporado al expediente digital el 12 de abril de 2021, Diana Hidalgo Alfaro, cédula de identidad 118580735, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
25. 26Por escrito incorporado al expediente digital el 12 de abril de 2021, Adrián Mora Molina, cédula de identidad 118910124, formula coadyuvancia activa.
26. 27Por escrito incorporado al expediente digital el 12 de abril de 2021, Fiorella Vega Motta, cédula de identidad 118630383, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
27. 28Por escrito incorporado al expediente digital el 12 de abril de 2021, Lilliam Daniela Mora Montoya, cédula 118500530, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
28. 29Los edictos a que se refiere el párrafo segundo del artículo 81 de la Ley de la Jurisdicción Constitucional fueron publicados en las ediciones nros. 70, 71 y 72 de los días 13, 14 y 15 de abril de 2021 del Boletín Judicial, respectivamente.
29. 30Por escrito incorporado al expediente digital el 13 de abril de 2021, Jorge Alberto Serendero Hülssner, cédula de residencia 115200011317, en su condición de representante de For The Oceans Foundation, cédula jurídica nro. 3-006-735148, formula coadyuvancia activa. Expone “Considero que esta acción de inconstitucionalidad debe ser declarada con lugar porque la ley que se cuestiona no está apoyada en estudios dentro de la ciencia que lleven a justificar la reducción en la protección marina ni la zona especial de turismo que evidentemente persigue fines comerciales' que rozan con el artículo 50 constitucional y el interés ambiental que emana de nuestro Ordenamiento Jurídico. Me parece que en la parte marina existe un problema muy serio al haber autorizado la construcción de atracaderos y muelles, como se señala en el artículo 16 de la ley, puesto que ello está totalmente prohibido en Ley de Concesión y Operación de Marinas y Operación Atracaderos de Marinas y Atracaderos Turísticos, en su artículo primero.Esas obras jamás podrían ser parte de un parque nacional pues propician la contaminación y ello desvirtúa la razón de ser de un parque nacional o un refugio de vida silvestre y por ello solicito que se declare la inconstitucionalidad. Para terminar, considero que es totalmente inconstitucional haber reducido de 6 metros de profundidad a 3 en el perímetro del parque pues para ello no medió ningún estudio que lo justificara. Resulta todo un contrasentido que una isla que tiene varios humedales marinos se le limite su perímetro de protección que es hasta de 6 metros de profundidad partiendo de la marea baja y por esta razón al existir contradicciones entre esta nueva ley y la Convención RANSAR y la Ley Orgánica del Ambiente, en lo referente a la protección de estos bosques húmedos pido que se declare la inconstitucionalidad por violación al principio precautorio y al de no regresión. Parece claro que esa Comisión Administradora del Fideicomiso persigue fines comerciales pues así lo dispone la misma ley y ante ello expongo que la misma figura del fideicomiso configura a ente netamente comercial y por ello creo que el fideicomiso roza con la constitución política y por ello la norma 13 que permite hacer fideicomisos en esta área silvestre protegida debe ser declarada como inconstitucional.Esa norma 13 de ley, choca abiertamente contra lo preceptuado en la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América (Ley 3763) que dice sobre parques nacionales: "ARTICULO III. Las riquezas existentes en ellos no se explotarán con fines comerciales" Pero si ustedes ven el artículo 9 de la ley cuestionada señala: "Artículo 9.- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones: ... ¿O Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla… " Por ello digo que al autorizase a constituir fideicomisos, se violentan normas de rango internacional y hasta la misma Ley del Servicio de Parques Nacionales que estaría unida al artículo 50 constitucional.No podía terminar sin decir que hoy en día existen varios tipos de bosques que cubren el 100 por ciento de la isla, entonces ¿cómo rima todo ello con hacer actividades comerciales? La verdad, la biodiversidad terrestre se puede ver sumamente comprometida con esta ley inconstitucional”.
30. 31Por escrito incorporado al expediente digital el 13 de abril de 2021, Andersson Montes Carrillo, cédula de identidad 118670764, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
31. 32Por escrito incorporado al expediente digital el 13 de abril de 2021, Esteban Castro Oviedo, cédula de identidad 208440854, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
32. 33Por escrito incorporado al expediente digital el 13 de abril de 2021, Jorge Enrique Morales Gómez, cédula de identidad 504460722, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
33. 34Por escrito incorporado al expediente digital el 13 de abril de 2021, Marco Chavarría Sánchez, cédula de identidad 402540558, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
34. 35Por escrito incorporado al expediente digital el 13 de abril de 2021, Christopher Solís Chavarría, cédula de identidad 402150734, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
35. 36Por escrito incorporado al expediente digital el 13 de abril de 2021, Anllel Raquel Cordero Mayorga, cédula de identidad 702690567, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
36. 37Por escrito incorporado al expediente digital el 13 de abril de 2021, Yendry Pamela Estrada Rivera, cédula de identidad 702880343, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
37. 38Por escrito incorporado al expediente digital el 13 de abril de 2021, Jenifer Vargas Madrigal, cédula de identidad 208210084, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
38. 39Por escrito incorporado al expediente digital el 13 de abril de 2021, Juan Manuel Morales Prado, cédula de identidad 504490003, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
39. 40Por escrito incorporado al expediente digital el 13 de abril de 2021, Keilyn Leticia López López, cédula de identidad 504460796, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
40. 41Por escrito incorporado al expediente digital el 13 de abril de 2021, Marcelo Antonio Roa Rosales, cédula de identidad 208500759, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
41. 42Por escrito incorporado al expediente digital el 13 de abril de 2021, Sharon Camila Alfaro Núñez, cédula de identidad 402600839, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
42. 43Por escrito incorporado al expediente digital el 13 de abril de 2021, Sofía Cordero Cordero, cédula de identidad 118870321, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
43. 44Por escrito incorporado al expediente digital el 13 de abril de 2021, Keytlin Gómez Zúñiga, cédula de identidad 402600263, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
44. 45Por escrito incorporado al expediente digital el 13 de abril de 2021, Jeilyn Elena Flores Navarro, cédula de identidad 305160463, plantea coadyuvancia activa.
45. 46Por escrito incorporado al expediente digital el 13 de abril de 2021, Keilyn Calvo Campos, cédula de identidad 118040698, formula coadyuvancia activa.
46. 47Por escrito incorporado al expediente digital el 13 de abril de 2021, Shazad Rolando Fuentes Chavarría, cédula de identidad 116670007, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
47. 48Por escrito incorporado al expediente digital el 14 de abril de 2021, Alberto Cruz Ramírez, cédula de identidad 402400204, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
48. 49Por escrito incorporado al expediente digital el 14 de abril de 2021, Daniel Mena Vargas, cédula de identidad 118810657, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
49. 50Por escrito incorporado al expediente digital el 14 de abril de 2021, Madeline Garita Matamoros, cédula de identidad 118370090, interpone coadyuvancia activa.
50. 51Por escrito incorporado al expediente digital el 14 de abril de 2021, Sharon Blandón Ruiz, cédula de identidad 118690830, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
51. 52Por escrito incorporado al expediente digital el 14 de abril de 2021, Kevin Núñez Jaimes, número de identificación 117002159511, plantea coadyuvancia.
52. 53Por escrito incorporado al expediente digital el 14 de abril de 2021, Daniela Agüero Araya, cédula de identidad 402590318, Mario Campos Artavia, Silvia Cedeño Ulate, cédula de identidad 109940129, Hazel Araceli Oviedo Gómez, número de identificación 155820812216, Vinicio Agüero Hernández, cédula de identidad 108090447, Nuria Araya Cruz, cédula de identidad 108650786, Tamara Sánchez Di Luca, cédula de identidad 402600368, y Valeria Sánchez Di Luca, cédula de identidad 402530073, interponen coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
53. 54Por escrito incorporado al expediente digital el 14 de abril de 2021, Ariel Granda Solano, cédula de identidad 402590208, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
54. 55Por escrito incorporado al expediente digital el 14 de abril de 2021, María Jesús Víquez Camacho, cédula de identidad 402550350, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
55. 56Por escrito incorporado al expediente digital el 14 de abril de 2021, Eduardo Carillo Jiménez, cédula de identidad 105750493, interpone coadyuvancia activa y expone: “A- En la parte marina, es claro que existe una situación de reducción injustificada del área silvestre protegida puesto que por ejemplo desde el voto constitucional voto No. 13099-2010 se había determinado que la parte marina iba a tener una ampliación de 210 hectáreas, pero en el artículo 3 de la Ley cuestionada solo se dice: (…) Como se aprecia en lo anterior, es claro que eso que se resalté en negrita transgrede abiertamente el voto constitucional No. 13099-2010. Por otro lado, no se entiende, ni se justifica, el por qué se habla de una delimitación hasta 3 metros de profundidad si el Refugio de Vida Silvestre Isla San Lucas tenía previsto un perímetro de hasta 6 metros de profundidad. Con ¿cuáles estudios se razonó y previó como lo razonable esa reducción?Lo anterior, lo que denota es una norma que violenta el principio de no regresión y así se les pide declararlo. También resulta inconstitucional que se quiera establecer una "zona de turística" que estaría DIFERENCIADA (así lo dice el artículo 3 de la ley) del resto del parque. ¿Bajo cuáles criterios científicos se crea una zona diferenciada en un parque nacional en Costa Rica? Recordemos que los parques nacionales persiguen la protección de la biodiversidad y el paisaje, pero no son sitios para ser fragmentados como lo pretenden la nueva ley y por ello tenemos una irregularidad que violenta el espíritu de la misma Ley del Servicio de Parques Nacionales y así pedimos declararlo. Es manifiesto que todo lo anterior se hizo sin estudios y los diputados no tienen competencia para llegar hasta donde llegaron y por ello pido que se decrete la inconstitucionalidad. Los parques nacionales son áreas importantes por la biodiversidad que contienen, y en general, son áreas grandes que contienen ecosistemas que protegen diversos procesos ecológicos representativos del área geográfica en la que se encuentran. En este caso, la Isla de San Luca podría ser declarada un área silvestre protegida, pero nunca un Parque Nacional”.
56. 57Por escrito incorporado al expediente digital el 14 de abril de 2021, Carlos Andrés Matamoros Durán, cédula de identidad 702830890, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
57. 58Por escrito incorporado al expediente digital el 14 de abril de 2021, Stephanie Fabiola Arrieta Ángulo, cédula de identidad 117940867, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
58. 59Por escrito incorporado al expediente digital el 14 de abril de 2021, Hazel Vanessa Jiménez Selva, cédula de identidad 208400078, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
59. 60Por escrito incorporado al expediente digital el 14 de abril de 2021, Diego Cruz Bermúdez, cédula de identidad 118620966, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
60. 61Por escrito incorporado al expediente digital el 14 de abril de 2021, Monserrat Ramírez Madrigal, cédula de identidad 118480304, Juan Ramírez Ruiz, cédula de identidad 106440854, Rachell Rojas Solano, cédula de identidad 118510666, Yolanda Madrigal Hernández, cédula de identidad 107410939, Viviana Mora Madrigal, cédula de identidad 146290370, Maricel Rodríguez Hernández, cédula de identidad 601900810, Saúl Mora Madrigal, cédula de identidad 116730994, Estefany Murillo Madrigal, cédula de identidad 113090685 y Jerry Fernández Carrión, cédula de identidad 112060455, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
61. 62Por escrito incorporado al expediente digital el 15 de abril de 2021, David Rodríguez Paniagua, cédula de identidad 402170554, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
62. 63Por escrito incorporado al expediente digital el 15 de abril de 2021, Jeymar Dixon Solano, cédula de identidad 702730750, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
63. 64Por escrito incorporado al expediente digital el 15 de abril de 2021, Cherlin Urbina Rosales, cédula de identidad 402570190, plantea coadyuvancia activa.
64. 65Por escrito incorporado al expediente digital el 15 de abril de 2021, Melanie Quirós Porras, cédula de identidad 117830321, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
65. 66Por escrito incorporado al expediente digital el 15 de abril de 2021, Hugo Arias Ramírez, cédula de identidad 204610008, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
66. 67Por escrito incorporado al expediente digital el 15 de abril de 2021, Brandy Tamara Jiménez Araya, cédula de identidad 118730794, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
67. 68Por escrito incorporado al expediente digital el 15 de abril de 2021, Sebastián Morales Pérez, cédula de identidad 208430018, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
68. 69Por escrito incorporado al expediente digital el 15 de abril de 2021, María Daniela Aguilar Chavarría, cédula de identidad 118570529, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
69. 70Por escrito incorporado al expediente digital el 15 de abril de 2021, Mariela Brenes Orozco, cédula de identidad 305420304, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
70. 71Por escrito incorporado al expediente digital el 15 de abril de 2021, Jeilyn Flores Navarro, cédula de identidad 305160463, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
71. 72Por escrito incorporado al expediente digital el 15 de abril de 2021, Karla Valeska Solís Salazar, cédula de identidad 604750438, y Olga Mayela Salazar Bonilla, cédula de identidad 108150009, formulan coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
72. 73Por escrito incorporado al expediente digital el 15 de abril de 2021, Luis Diego Bustos Arguedas, cédula de identidad 402520195, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
73. 74Por escrito incorporado al expediente digital el 15 de abril de 2021, Lisbeth Sánchez Rodríguez, cédula de identidad 702730398, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
74. 75Por escrito incorporado al expediente digital el 15 de abril de 2021, Allan Solano León, cédula de identidad 402400301, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
75. 76Por escrito incorporado al expediente digital el 15 de abril de 2021, Jennifer Vásquez Arias, cédula de identidad 208130412, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
76. 77Por escrito incorporado al expediente digital el 15 de abril de 2021, Keylin López López, cédula de identidad 504460796, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
77. 78Por escrito incorporado al expediente digital el 15 de abril de 2021, José Carlos Araya Campos, cédula de identidad 604810847, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
78. 79Por escrito incorporado al expediente digital el 15 de abril de 2021, Leidy Sequeira Obando, cédula de identidad 208340142, formula coadyuvancia activa en este proceso.
79. 80Por escrito incorporado al expediente digital el 15 de abril de 2021, Natasha Solís Solórzano, cédula de identidad 114200104, plantea coadyuvancia activa.
80. 81Por escrito incorporado al expediente digital el 16 de abril de 2021, Sofía Cordero Cordero, cédula de identidad 118870321, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
81. 82Por escrito incorporado al expediente digital el 16 de abril de 2021, Natasha Solís Solórzano, cédula de identidad 114200104, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
82. 83Por escrito incorporado al expediente digital el 16 de abril de 2021, Iván Rojas Arce, cédula de identidad 208340708, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
83. 84Por escrito incorporado al expediente digital el 16 de abril de 2021, Iván Mora Brenes, cédula de identidad 117600649, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
84. 85Por escrito incorporado al expediente digital el 16 de abril de 2021, Troy Vargas Ortiz, cédula de identidad 117300937, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
85. 86Por escrito incorporado al expediente digital el 16 de abril de 2021, Keytin Zapata Cortés, cédula de identidad 702870157, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
86. 87Por escrito incorporado al expediente digital el 16 de abril de 2021, Isaura Mora Bárcenas, cédula de identidad 117760949, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
87. 88Por escrito incorporado al expediente digital el 16 de abril de 2021, Fabricio Ávila Sanabria, cédula de identidad 208340774, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
88. 89Por escrito incorporado al expediente digital el 16 de abril de 2021, Kendry Chavarría Mena, cédula de identidad 402580706, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
89. 90Por escrito incorporado al expediente digital el 16 de abril de 2021, Roberto Molina Ugalde, en su condición de representante del Sindicato de Trabajadores del Ministerio de Ambiente y Energía (SITRAMINAE), formula coadyuvancia activa. Expone: “Me apersono ante su Autoridad a efecto de presentar una coadyuvancia activa para que se declare inconstitucional la Ley No. 9892 promulgada el 24 de agosto del 2020, por ser contraria a los principios de no regresión, proporcionalidad, objetivación, precautorio y progresividad. Nuestra organización se adhiere a la acción de inconstitucionalidad previa en calidad de coadyuvante según rezan los artículos 75 y 84 de la actual Ley de la jurisdicción Constitucional. Asimismo, siendo que está en discusión un tema ateniente a los intereses difusos en materia ambiental por violación al artículo 50 y al 89, solicito que se nos tenga como legitimados dentro de esta acción (…) PRIMERO: Consideramos que el artículo 15 de la ley que se cuestiona de inconstitucional debe ser declarado inaplicable dentro del Ordenamiento jurídico patrio, puesto que establece la creación de una policía o una seguridad privada que trabajará supuestamente junto con los guardaparques.Lo anterior es contrario al deber que se ha encomendado a cientos de compañeros y compañeras que trabajan para el SINAC MINAE y no encuentra ningún sustento en ningún cuerpo normativo. Tengan presente ustedes que una policía privada dentro de un parque nacional se confronta con los deberes de control y protección que hacemos nosotros como funcionarios públicos, reconocidos como autoridades de policía (un cuerpo policial especial del Estado Costarricense), se encuentra en lo anterior un ánimo de querer eliminar las funciones del SINAC dentro de las áreas silvestres protegidas y ello es muy peligroso, pues esas personas que sean nombradas no deben la sensibilidad ni la preparación que nuestros compañeros tienen. Estamos por tanto ante una invasión de competencias que no tiene fundamento y si a lo anterior se le señala que no existe un sustento financiero para pagar capacitaciones o salarios, tenemos que ese nuevo cuerpo vendrá a desmejorar las labores que el SINAC hace en San Lucas, tanto en la parte marina como en la terrestre.Por ello vemos que existe una inconstitucionalidad. Los fines aparentes de esa policía privada son evidentemente comerciales y ello no debe estar permitido en un parque nacional. Un problema serio se verá si no se declara la inconstitucionalidad en la coordinación y en la dirección de este cuerpo de seguridad pues no queda claro si obedecerán al SINAC a la junta directiva que se creará (donde nadie del SINAC participa) o si responderán a los comerciantes que obtengan concesiones dentro del parque. Por ello rogamos acoger la inconstitucionalidad de esa norma 15. Se violentan los cánones 191 y 192 de nuestra Carta Magna, en el sentido que el servido de guardaparques deviene de un régimen estatutario, con mecanismos de selección para el servicio público basados en idoneidad, que no se respetarían en este caso, ad abrirse la puerta de una policía que difiere de las labores y fines de los mismos guardaparques, que si poseen las competencias y adherencia a un régimen estatutario, como lo es el Servicio Civil.SEGUNDO: Como está establecida la norma 10 de la ley 9892, tenemos que se omitió que un representante del SINAC participe en la torna de decisiones sobre la administración de esta área silvestre protegida y ello violentaría el deber de protección que se le ha encomendado a esta entidad conforme al artículo 23 de la Ley de la Biodiversidad que estaría vinculado al artículo 50 de nuestra Constitución y así pedimos que se declare. Creemos que al dejar por fuera al director del SINAC de la junta directiva se cae en un abandono de competencias ambientales que violenta el interés ambiental público que debió de haber prevalecido y por ello se cae en una inconstitucionalidad. Importantísimo señalar que al Consejo Regional de Áreas de Conservación (CONAC) nunca se le pidió el criterio cuando la Ley era solo un proyecto y esto violenta el deber de participación en la toma de decisiones legislativas y claro que también un miembro del CORAC debió de ser parte de esa junta directiva administradora.Por todo ello consideramos que la norma 10 debe ser declarada como inconstitucional. Y toda la ley debe ser declarada como inconstitucional por no pedir criterio a un ente vital en la administración de las áreas silvestres protegidas. E1 CONAC es el máximo órgano administrativo del Sistema Nacional de Áreas de Conservación y en esa norma nunca fue consultado y nunca existió un acuerdo firme avalando dicha norma. En otras palabras, se violentan las prerrogativas determinadas por el artículo 11 y el artículo 50 de nuestra Carta Magna, por lo que debe declararse igualmente inconstitucional el supracitado artículo 10 de la ley que nos ocupa. TERCERO: Nos parece que si el área silvestre protegida tenía una extensión de cientos de hectáreas no se justifica de ninguna manera el por qué en la ley se redujera el área a proteger y esto lo señado respecto al área marina propiamente. Recordemos que el voto constitucional voto No. 13099-2010 había determinado que la parte marina iba a tener una ampliación de 210 hectáreas, pero en el artículo 3 de la Ley cuestionada no señaló nada sobre ello.¿Y dónde están los estudios técnicos y científicos para justificar esa reducción? ¿Tenemos ahora dos áreas con categorías de manejo diferente? De ser así, cuáles estudios justifican que un área marina siga siendo refugio y otro parque nacional. Y siendo que en el expediente no hay nada, amerita que se acoja la inconstitucionalidad de la norma 3 de la nueva ley y por ende de toda la ley pues esto no se corrige con interpretaciones. Y tan así este problema NO se corrige con simples interpretaciones, que también tenemos que sumarle a lo expuesto, que ha quedado en el limbo un área marina de 3 metros en todo el perímetro de la isla, dado que la ley delimitó que el parque llegaba hasta la extensión de 3 metros de profundidad, pero el refugio se extendía hasta 6 metros de profundidad. Por todo ello vemos inconsistencias de rango constitucional que ameritan la declaratoria de inconstitucionalidad por falta de claridad y por incertidumbre al no existir estudios que amparen la toma de decisiones.Terminando este apartado, tenemos que nada se dispuso sobre las áreas marinas donde existen manglares y esto violenta la convención RAMSAR pues se debió de haber advertido que esos bosques llegan hasta una profundidad de 6 metros, partiendo de la marea baja. ¿Y si es así por qué se autorizó una delimitación de tan solo 3 metros de profundidad? La respuesta es clara y es porque todo se hizo de forma improvisada y asimismo porque no se le consulto al órgano competente en materia ambiental como lo es el SINAC (CONAC). Estimamos que se violenta el Principio de Razonabilidad de los actos públicos según lo preceptuado en el Voto N° 1739-92 de la misma Sala Constitucional, al no existir razonabilidad entre los medios técnicos para medir el perímetro del área protegida, que se han hecho mención en este mismo punto CUARTO: Muy preocupante resulta que se disponga establecer una "zona de turística" que estaría diferenciada y fragmentando la parte terrestre del parque M y como expone el artículo 3 de la Ley.Esa zona que fragmenta o segmenta el parque busca fines comerciales y es ahí donde operaran su supone las concesiones comerciales que autorizará la junta directiva y la pregunta que vale que ustedes se hagan es: ¿Dónde están los estudios que justifican que un parque nacional se fragmente o se divida? Ustedes no encontrarán nada de ello en un estudio pues no hay estudios técnicos y científicos alguno en el expediente legislativo y entonces lo que vemos es improvisación en el manejo de la biodiversidad, riesgos de daños ambientad significativos y mera discrecionalidad abusiva y así pedimos que se disponga en sentencia. En esta línea el artículo 3 y el 6 son inconstitucionales y por ende toda la Ley puesto que ellos son parte medular y estructural en el cuerpo normativo cuestionado. Adjunto, nota de la secretaria del CONAC (…) 1.- Solicitamos a esta digna autoridad jurisdiccional que se nos tenga como parte coadyuvante y presente en esta acción de inconstitucionalidad incoada bajo expediente N° 21-005756-0007-CO que pende en estrados judiciales. 2.- Concomitantemente con todo lo anteriormente expuesto, solicitamos igualmente que se incorporen a la litis los reproches alegados en los hechos de esta coadyuvancia”.
90. 91Por escrito incorporado al expediente digital el 16 de abril de 2021, María Cerdas Solís, cédula de identidad 118700632, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
91. 92Por escrito incorporado al expediente digital el 16 de abril de 2021, Javier Rodríguez Fonseca, cédula de identidad 105460710, plantea coadyuvancia activa y solicita que se declare con lugar la acción de inconstitucionalidad. Refiere que: “TERCERO: Considero ante todo que la parte marina está siendo severamente afectada en el tanto que existió una reducción que ha dejado desprotegidas muchas hectáreas alrededor de la isla tal y como se refiere en la argumentación de la presente acción. En términos de profundidad, la parte marina de la referida área protegida se reduce a la mitad pues originalmente como refugio de vida silvestre tenía un área marina de hasta 6 metros de profundidad, pero el artículo 3 de la Ley que lo transforma en parque nacional, la reduce a 3 metros de profundidad. Al ser la categoría de manejo actual de mayor protección, esta reducción es un contrasentido, con el agravante que no se proporciona ningún estudio ni justificación técnica o administrativa, razonable y proporcional, para tan severa y grave reducción.Tampoco medió en la redacción y aprobación de dicha ley, una acción compensatoria al respecto. Esto contraviene todos los principios científicos, técnicos y administrativos del manejo de un área silvestre protegida y del espíritu de la Ley del SINAC que promueve incrementar, razonablemente, más no reducir, las áreas de protección y fortalecimiento de los ecosistemas de los cuales los humanos y las demás especies dependemos. CUARTO: En referencia siempre a la reducción del área marina del nuevo parque nacional, los respetables legisladores obviaron por completo el valor enorme que tienen las Áreas Marinas Protegidas (AMPs) como sitios de recuperación y desbordamiento hacia los alrededores de las poblaciones de peces y otros recursos marinos asociados. Siendo la Isla San Lucas uno de los pocos sitios marinos protegidos del ya sobreexplotado Golfo de Nicoya en sus recursos pesqueros, no es coherente reducirle el área marina protegida al ahora parque nacional, como garante local de la invaluable seguridad alimentaria para los empobrecidos habitantes del golfo y máxime en el contexto de pandemia por el Covid-19 en que todavía nos encontramos.QUINTO: También es de suma importancia exponer que la delimitación prevista en la Ley cuestionada NO está incluyendo las 210 hectáreas de área marina e islotes, que fueron añadidas al Refugio de Vida Silvestre mediante el Decreto 34282 y que la Sala Constitucional mantuvo como parte del área protegida en el voto no. 130992010. No puede decirse que esas 210 Ha se mantienen como "refugio" fuera del nuevo parque, pues esa fragmentación en los dos tipos de áreas silvestres protegidas NO encuentra justificación ni hay estudios ni procesos consultivos que justifiquen lo que se hizo y ello es sumamente peligroso y así pido que se declare. SEXTO: Muy relacionado con el punto anterior, esa supresión arbitraria de la superficie marina de esta área protegida, sumada a la reducción de su profundidad ya señalada, elimina la posibilidad de realizar las diferentes actividades sostenibles y responsables del creciente turismo marino, como observación turística de Cetáceos (ballenas, delfines y parientes), buceo y snorkeling, observación de aves marinas, etc. lo cual contraviene los mismos propósitos y articulados de la ley en cuestión.También se contrapone con las recomendaciones técnicas, acordes a los objetivos del SINAC, de fortalecimiento de las actividades de turismo marino en la isla hechas por diferentes consultorías en años recientes. SÉTIMO: Las reducciones indicadas van además contra las políticas gubernamentales, nacionales y globales, de incrementar las AMP's al 30% de la extensión de la Zona Económica Exclusiva (ZEE) de cada país y del territorio marino planetario, compromiso que Costa Rica ha asumido desde hace varias administraciones atrás. OCTAVO: La conformación de una Junta Directiva que gestiona y administra el Parque es una figura no estipulada por la Ley de Creación del SINAC y, además, no considera representantes ni de la academia, ni de la sociedad civil no empresarial. NOVENO: Es de mi parecer que todas las consideraciones hechas son fundamentales para que que (sic) se decrete la inconstitucionalidad de toda la ley”.
92. 93Por escrito incorporado al expediente digital el 16 de abril de 2021, María Fernanda Cerdas Solís, cédula de identidad 118700632, Isabel Cristina Solís Solano, cédula de identidad 108630384 y Manuel Alberto Cerdas Salazar, cédula de identidad 108320968, plantean coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
93. 94Por escrito incorporado al expediente digital el 16 de abril de 2021, Shirley Méndez Cordonero, cédula de identidad 116480411, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
94. 95Por escrito incorporado al expediente digital el 16 de abril de 2021, Siam Herrera Arias, cédula de identidad 117920947, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
95. 96Por escrito incorporado al expediente digital el 19 de abril de 2021, Natasha Solís Solórzano, cédula de identidad 114200104, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
96. 97Por escrito incorporado al expediente digital el 19 de abril de 2021, Michelle Castro Aguilar, cédula de identidad 118320895, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
97. 98Por escrito incorporado al expediente digital el 19 de abril de 2021, Ángel Gabriel Loaiza Vargas, cédula de identidad 118450087, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
98. 99Por escrito incorporado al expediente digital el 19 de abril de 2021, Mayke Monge Vargas, cédula de identidad 117930324, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
99. 100Por escrito incorporado al expediente digital el 19 de abril de 2021, Marlene Valverde Chacón, cédula de identidad 105510575, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
100. 101Por escrito incorporado al expediente digital el 19 de abril de 2021, Esteban Valverde Vásquez, cédula de identidad 116720527, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
101. 102Por escrito incorporado al expediente digital el 19 de abril de 2021, Angie Gómez López, cédula de identidad 117180283, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
102. 103Por escrito incorporado al expediente digital el 19 de abril de 2021, Maripaz Espinach Bonilla, cédula de identidad 118530618, Cynthia Bonilla Alfaro, cédula de identidad 110430592, María Isabel Alfaro Chavarría, cédula de identidad 104170263, María Bonilla Alfaro, cédula de identidad 108300229, Andrés Espinach Bonilla, cédula de identidad 115820626, Mauricio Espinach Montero, cédula de identidad 105780247 y Gabriel Espinach Bonilla, cédula de identidad 117850591, interponen coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
103. 104Por escrito incorporado al expediente digital el 19 de abril de 2021, Kendry Jiménez Hernández, cédula de identidad 118750196, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
104. 105Por escrito incorporado al expediente digital el 19 de abril de 2021, Michelle Ulloa Martínez, cédula de identidad 118400691, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
105. 106Por escrito incorporado al expediente digital el 19 de abril de 2021, Leidy Sequeira Obando, cédula de identidad 208340142, formula coadyuvancia activa.
106. 107Por escrito incorporado al expediente digital el 19 de abril de 2021, Cynthia Alvarado Bravo, cédula de identidad 305310106, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
107. 108Por escrito incorporado al expediente digital el 19 de abril de 2021, Melany Gamboa Mata, cédula de identidad 118720956, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
108. 109Por escrito incorporado al expediente digital el 19 de abril de 2021, Josyah Barahona Pérez, cédula de identidad 118650312, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
109. 110Por escrito incorporado al expediente digital el 19 de abril de 2021, Daniela Vargas Leitón, cédula de identidad 208470661, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
110. 111Por escrito incorporado al expediente digital el 19 de abril de 2021, Clarissa León Alfaro, cédula de identidad 118150214, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
111. 112Por escrito incorporado al expediente digital el 19 de abril de 2021, Sheiner Umaña Erazo, cédula de identidad 118390236, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
112. 113Por escrito incorporado al expediente digital el 19 de abril de 2021, Sebastián Castro Rojas, cédula de identidad 118760799, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
113. 114Por escrito incorporado al expediente digital el 19 de abril de 2021, Leonardo Nach Vivas, cédula de identidad 702970969, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
114. 115Por escrito incorporado al expediente digital el 19 de abril de 2021, Grettel Sánchez Montezuma, cédula de identidad 702910457, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
115. 116Por escrito incorporado al expediente digital el 19 de abril de 2021, Ian Calvo Jiménez, cédula de identidad 305480829, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
116. 117Por escrito incorporado al expediente digital el 19 de abril de 2021, Geison Fuentes Arguedas, cédula de identidad 702800765, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
117. 118Por escrito incorporado al expediente digital el 20 de abril de 2021, Fabián Herrera Núñez, cédula de identidad 207980001, María Edith Núñez Carvajal, Daniel Aguilera Núñez, Steven González Salazar, Yulissa Orozco Alfaro, Grettel Aguilera Salazar, Paola Salazar Aguilera, José Pablo Núñez Salazar, Joshua González Alfaro, Gabriela Núñez Salazar, Wendy González Salazar, Fidedigno Corrales Barrantes, Saul Matarrita Alvarado, Willian Salazar Carranza, y Manuel Herrera Corrales, plantean coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
118. 119Por escrito incorporado al expediente digital el 20 de abril de 2021, Daniela Vargas Leitón, cédula de identidad 208470661, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
119. 120Por escrito incorporado al expediente digital el 20 de abril de 2021, Laura Porras Rojas, cédula de identidad 118400342, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
120. 121Por escrito incorporado al expediente digital el 20 de abril de 2021, Steven Lozano Raith, cédula de identidad 117860189, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
121. 122Por escrito incorporado al expediente digital el 20 de abril de 2021, Nikole Segura Mora, cédula de identidad 118040136, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
122. 123Por escrito incorporado al expediente digital el 20 de abril de 2021, Gabriel Bello Escalona, documento de identidad 186201205318, plantea coadyuvancia activa.
123. 124Por escrito incorporado al expediente digital el 20 de abril de 2021, Valeria Calderón Mora, cédula de identidad 117980913, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
124. 125Por escrito incorporado al expediente digital el 20 de abril de 2021, Aaron Chávez Molina, cédula de identidad 118750067, Larissa Chávez Molina, cédula de identidad 116520300, Johel Chávez Molina, cédula de identidad 117900923, Telma Molina Núñez, cédula de identidad 801300395 y Joel Chávez Ríos, documento de identidad 122200244732, formulan coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
125. 126Por escrito incorporado al expediente digital el 20 de abril de 2021, Brandon Sánchez Chavarría, cédula de identidad 208360240, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
126. 127Por escrito incorporado al expediente digital el 20 de abril de 2021, Valeria Cortés Brenes, cédula de identidad 118730609, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
127. 128Por escrito incorporado al expediente digital el 20 de abril de 2021, Kacey Gabriel Alvarado Jiménez, cédula de identidad 118660508, Lenni Jiménez Elizondo, cédula de identidad 603130586, Jorge Gerardo Jiménez Arias, cédula de identidad 103920122, Yamilet Elizondo Peraza, cédula de identidad 602860575, Flory Elizondo Peraza, cédula de identidad 105140606, Steven Juarez Segura, cédula de identidad 115200312, Leidy Jiménez Elizondo, cédula de identidad 603330655, Daniel Morales Gutiérrez, cédula de identidad 110950920, Stephanie Brenes Solano, cédula de identidad 114370645, Mauricio Brenes Fernández, cédula de identidad 302560890, y Jairo Salas Sánchez, cédula de identidad 116790349, plantean coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
128. 129Por escrito incorporado al expediente digital el 20 de abril de 2021, Laura Barrientos Calderón, cédula de identidad 112750356, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
129. 130Por escrito incorporado al expediente digital el 20 de abril de 2021, Hillary Cubero Araya, cédula de identidad 604740344, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
130. 131Por escrito incorporado al expediente digital el 20 de abril de 2021, Emmanuel Arce Quesada, cédula de identidad 118050443, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
131. 132Por escrito incorporado al expediente digital el 20 de abril de 2021, Fabiola González Martínez, cédula de identidad 402580758, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
132. 133Por escrito incorporado al expediente digital el 21 de abril de 2021, se apersona Gustavo José Segura Sancho, en su doble condición de presidente ejecutivo de Instituto Costarricense de Turismo y ministro de Turismo. Expone: “ASPECTOS HISTÓRICOS LIGADOS A LA ISLA SAN LUCAS. El Golfo de Nicoya constituyó el límite sur de Mesoamérica donde se desarrolló la subárea de lo que se conoció como la Gran Nicoya. Durante el período Policromo Medio (800 a 1200 d.C.), la región tuvo migraciones mexicanas de la etnia chorotegas-mange (dirán y orotiña) en la Península de Nicoya y al Este del Golfo, y se caracterizó por la prosperidad y desarrollo de artesanías. Para el período policromo tardío (1200 a 1525 d.C.), que concluye por el contacto con europeos, la cultura posee muchos rasgos característicos de las mexicanas.1 En adición, los españoles Juan de Castañeda y Hernández Ponce de León, tenientes de Pedro Arias de Avila (sic) (Pedrarias Dávila); descubren el Golfo de Nicoya en 1519.Luego lo recorre Gil González de Avila (sic) (Dávila) en 1522, quien llega incluso hasta el río Tempisque, llamado por los aborígenes Zapandí, Sabandí o Sapandí. 2 Las islas del Golfo de Nicoya, conocidas como San Lucas, Orotiña o de los Güetares, son descritas con amplitud por Gonzalo Fernández de Oviedo y Valdés, cronista español que lo visitó en 1529. Oviedo elaboró un mapa corográfico del Golfo de Nicoya con nueve de sus islas, refiriéndose a algunas de ellas con sus nombres aborígenes. 3 El viajero alemán Wilhelm Adolp Marr describe, en febrero de 1853, la zona que se señala, manifestando que: El golfo de Nicoya es uno de los espectáculos más hermosos de la naturaleza meridional que es posible imaginar. Suprímansele al golfo de Nápoles las obras que corresponden a la actividad artística del hombre, es decir, toda la ciudad de Nápoles y sus alrededores, y yo apuesto que todo viajero adjudicará la palma al golfo de Nicoya.Es un estanque de 12 a 15 lenguas de largo por 1 a 6 de ancho, que penetra casi de sur a norte en ese magnífico país, "el paraíso de los Andes", que se llama Costa Rica…En la otra margen del golfo, la tierra firme, medianamente alta, está orlada de islas de coral dentadas, entre las cuales, como si fuesen superficies de plata, se forman las más encantadoras y cómodas ensenadas que alimenta el gran océano. Arriba, hacia el Guanacaste, el golfo se asemeja al fondo de un paisaje suizo y no difiere mucho, con sus islas, del lago Maggiore. Por fin, enteramente al norte, limita el cuadro una cordillera que se yergue detrás de un bosque pantanoso que tiene varias millas de largo.4 Con relación a Isla San Lucas, La Ley Nº 37 del 3 de agosto de 1847 otorgó la franquicia de comercio a la citada. Sin embargo, poco después la disposición se dejó sin efecto y se trasladó al Puerto de Puntarenas por Ley Nº 46 del 4 de setiembre de 1847, artículo 7.En adición, la Ley Nº 7 del 25 de febrero de 1874, reglamentó el presidio en San Lucas bajo la autoridad del Gobernador de la Comarca de Puntarenas. Luego, la Ley Nº 12 del 14 de setiembre de 1882, ante la falta de condiciones de salubridad de la isla, autorizó al Poder Ejecutivo para erigir un nuevo presidio en otra isla del litoral Pacífico (artículo 1) y acordó trasladar los reos a quienes les faltaran más de tres meses de condena, al presidio de la isla del Coco o al que resultare elegido para sustituir al de San Lucas, con el beneficio de rebajar el resto de la condena en una cuarta parte. Los que tuvieran tres meses o menos serían trasladados a la cárcel de Puntarenas para descontarlos en obras públicas (artículos 2 y 3). No obstante, por razones de economía para la Administración Pública, por Ley Nº 7 del 6 de octubre de 1882, se remitieron los reos de la isla del Coco a San Lucas (artículo 1), y se dispuso en forma inmediata por cuenta del Tesoro Nacional, realizar las obras necesarias para hacer salubre el presidio de San Lucas (artículo 3).El mapa de 1891 elaborado por Eliseo Fradin5, describe el presidio en el mismo sector que lo contiene la Hoja Cartográfica Golfo de 1967. Es decir, entre los peñascos contiguos a Playa Pilitas y Playa El Inglés. Además, el mapa de Fradin describe seis miradores en la isla, cinco alrededor de su costa y uno interno, cercano al Cerro Control. La Ley Nº 89 del 20 de marzo de 1925, autorizó el giro de cuarenta mil colones para la reconstrucción de los edificios del presidio de San Lucas con las obras necesarias para alumbrado eléctrico y provisión de aguas, así como diez mil colones para los estudios necesarios de selección del sitio del nuevo presidio. La Ley Nº 54 del 13 de junio de 1934, destinó veinte mil colones para los servicios de fuerza eléctrica en la Isla. El presidio se mantuvo en la Isla hasta que la Ley Nº 5469 del 25 de abril de 1974, ordenó su traslado dentro del plazo de dos años a partir de su vigencia (Transitorio Único), y otorgó la administración de sus terrenos a la Municipalidad de Puntarenas, competencia que reiteró la Ley 6043 sobre la Zona Marítimo Terrestre en su artículo 78.El Decreto Nº 24520 del 27 de julio de 1995, declaró de Interés Histórico Arquitectónico el Edificio Presidio en esta isla. Además, el territorio insular cuenta hasta el momento con el registro de 9 sitios arqueológicos.6 Por otra parte, el Decreto Nº 29277 del 11 de enero del 2001, artículo 1º declaró Refugio Nacional de Vida Silvestre el área comprendida por la Isla San Lucas (4.62 km.) y el área marino costero, compuesta por las aguas alrededor de la isla con una profundidad de hasta 6 m, transfiriendo así su administración al Ministerio del Ambiente y Energía.7 Por Decreto Ejecutivo 32349 del 25 de febrero de 2005, se establece una Ampliación y Delimitación del área del Humedal Estero Puntarenas y Manglares Asociados, declarados en el Refugio Nacional de Vida Silvestre el área comprendida por la Isla San Lucas y el área marino costero. 8 Es así como, por artículo 2 se establece que: Artículo 2º-Amplíese y delimítese el área del Humedal Estero Puntarenas y Manglares Asociados declarados según Decreto Ejecutivo N° 29277-MINAE, cuya ubicación se localiza según las hojas cartográficas del Instituto Geográfico Nacional denominadas Golfo, edición 3-IGNCR y Chapernal edición 2-IGNCR, con un área de 4362 ha…Fundamentado en lo anterior, hasta el momento coligen normas legales de administración de la Isla, junto con decretos que establecían el carácter histórico y de protección ambiental del territorio. SOBRE EL DECRETO EJECUTIVO 34282-TUR-MINAE-C Y LA ACCIÓN DE INCONSTITUCIONALIDAD PRESENTADA. Por Decreto Ejecutivo 34282-TUR-MINAE-C del 25 de enero de 20089, vigente a partir del 8 de febrero de 2008, se pretende rectificar, delimitar y ampliar los límites del Refugio Nacional de Vida Silvestre Isla San Lucas y declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la Isla. Ante Acción de Inconstitucionalidad presentada contra el citado Decreto, la Sala Constitucional, por sentencia 2010-013099 de las catorce horas y cincuenta y seis minutos del cuatro de agosto del dos mil diez, en un análisis integrativo de normas y de competencias, señaló básicamente que: (…) De la anterior sentencia se pueden generar ciertos elementos en carácter de resumen: 1- El Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) de 25 de enero de 2008, publicado en el Alcance 10 a La Gaceta No. 28 del 8 de febrero de 2008, se mantiene vigente. 2- Que lo determinado para la existencia del Refugio Nacional de Vida Silvestre Isla San Lucas se mantiene sin cambios. 3- Que la resolución de la Sala Constitucional número 2010-013099 de las catorce horas y cincuenta y seis minutos del cuatro de agosto del dos mil diez, se mantiene vigente en todos sus extremos. 4- Que la citada sentencia expresa claramente la obligación del Estado de unificar competencias a efectos de administrar Isla San Lucas. 5- Que debe respetarse tanto la protección ambiental como también el patrimonio histórico del Estado vinculado con Isla San Lucas. 6- Que también debe existir una correlación con la actividad turística, a efectos de proporcionar zonas de visita y disfrute turístico, con un desarrollo sostenible y de protección de los patrimonios establecidos constitucionalmente. 7- Que la coordinación de diversas institucional provoca la posibilidad de la utilización de recursos económicos en aras de la protección constitucional y del desarrollo turístico.SOBRE LOS ELEMENTOS DE IMPUGNACIÓN PRESENTADOS En cuanto a las manifestaciones de los accionantes, sobre posibles vicios de constitucionalidad, se señala lo siguiente: Señalan a toda la ley como inconstitucional sin ninguna correlación lógica. El artículo 3 de la Ley de la Jurisdicción Constitucional establece que: “Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales.” Al indicarse que la norma infringe la Constitución Política, debe generarse una real confrontación, y quien presenta la acción debe precisar las razones para la inconstitucionalidad y en qué sentido pueden ser consideradas como tales. No es señalar que toda la Ley es inconstitucional, ni tampoco hacer alegatos sin ligamen con normas o principios constitucionales violentados.Esa obligación debe ser de los accionantes. Más sencillamente, no puede generarse el aforismo: “Se tiene por infringida la Constitución Política, cuando se tiene por infringida la Constitución Política.” Lo cual evidentemente no define nada. Cuando se alega la inconstitucionalidad, la declaratoria se hará solamente para los efectos de que se interpreten o apliquen en armonía con la Constitución o, si su contradicción con ella resultare insalvable, se ordene su desaplicación con efectos generales y se proceda a su denuncia; aspectos que no se observan el escrito de la acción. La inconstitucionalidad es la infracción, violación u oposición de una norma jurídica inferior a la Constitución Política con relación a una norma jurídica de la Constitución Política o de uno de sus principios. De igual manera, es inconstitucional, la infracción, violación u oposición de una norma jurídica constitucional con respecto a otra norma jurídica constitucional de procedimiento; de lo cual, como se observará no se encuentra en el escrito señalado.En cuanto a que la Ley impugnada reduce el área silvestre protegida sin ninguna justificación. Señalan los accionantes que el artículo 3 reduce el área a 3 metros de profundidad. El citado ordinal establece que: “El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera. La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo, Edición 3-IGNCR en la latitud norte 9º 55' 55" - 9 57' 20" y longitud oeste 84º 53' 23", con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha). El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m). Inserto, dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística.” Para analizar la citada norma se debe generar un estudio integral sobre el ordenamiento vigente.Tal y como se había señalado anteriormente, el Poder Ejecutivo, mediante el Decreto No. 29277 de 11 de enero de 2001, declaró la Isla San Lucas y el área marina circundante hasta una profundidad de seis metros, como un Refugio de Vida Silvestre, disponiendo que su administración correspondería al Ministerio de Ambiente y Energía y que su manejo se regiría de acuerdo con las disposiciones establecidas al respecto por la legislación vigente en la materia. Se añadió que, mediante Decreto Ejecutivo No. 30714-C de 26 de septiembre de 2002, se declaró e incorporó la isla, propiedad de la Municipalidad de Puntarenas, al Patrimonio Histórico Arquitectónico de Costa Rica, disponiéndose que esa declaratoria prohíbe la demolición del inmueble y su remodelación parcial o total, sin la autorización previa del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura. Los inmuebles en cuestión son la capilla y el antiguo presidio, entre otros.Sobre la validez del Decreto Ejecutivo No. 29777 que creó el área silvestre protegida en la isla, la Sala Constitucional indicó: (…) Además, se emitió el Decreto Ejecutivo No. 34282 de 25 de enero de 2008, que aumentó el área del Refugio en 210 hectáreas (que contienen porciones de agua e islotes), y declaró de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla estableciendo una Comisión Permanente conformada por los Ministros Rectores de Cultura, Juventud y Deportes, Turismo y Ambiente y Energía, o sus representantes y por el Alcalde de Puntarenas o su representante, encargada de velar por el manejo racional de los terrenos excluidos del Refugio y de administración municipal. Asimismo, ese Decreto dispuso que para el desarrollo de actividades turísticas en el área de administración municipal y para la preservación del patrimonio cultural de la isla, el ICT elaboraría un Plan Maestro de Desarrollo Turístico Sostenible, que comprendería un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural de esa área específica.Es decir, no existe nada nuevo. Se observa claramente que las áreas de protección se encontraban debidamente señaladas. En adición ya se había regulado claramente las actuaciones y competencias de las diferentes administraciones. Por otra parte, ante tres acciones de inconstitucionalidad planteadas contra ese Decreto, la Sala Constitucional reiteró la validez de la creación del Refugio de Vida Silvestre, y, por tanto, lo declaró inconstitucional, únicamente en cuanto redujo el área terrestre del Refugio, pero, eso sí, manteniendo la adición de área marina dispuesta. En ese sentido, como ya se señaló anteriormente, dispuso: (…) Entonces, ¿qué se deduce de lo anteriormente señalado? Pues algo que es muy claro: los Decretos Ejecutivos No. 29277, 30714-C y 34282, se encuentran vigentes; y la Ley 9892 Creación del Parque Nacional Isla San Lucas no los derogó, ni de forma expresa ni de forma tácita.Es decir, el Parque Nacional se crea, y la protección del patrimonio arquitectónico, histórico y ambiental establecido por los decretos señalados, también se mantiene vigente. No existe cambio alguno sino una acción de mayor protección. Entonces, ¿es un tema de inconstitucional lo señalado en el artículo 3 de la citada Ley? Pues no, hablar del tema de los 3 o de los 6 metros no es de recibo puesto que existen normas del Ejecutivo que se mantienen vigentes. En efecto, en orden a la necesidad de integrar el ordenamiento, el legislador ha establecido cuál es el orden de aplicación de los diversos segmentos del Derecho. Dispone el artículo 9 de la Ley General de la Administración Pública: 1. El ordenamiento jurídico administrativo es independiente de otros ramos del derecho. Solamente en el caso de que no haya norma administrativa aplicable, escrita o no escrita, aplicará el derecho privado y sus principios. 2.Caso de integración, por laguna del ordenamiento administrativo escrito, se aplicarán, por su orden, la jurisprudencia, los principios generales del derecho público, la costumbre y el derecho privado y sus principios. El mandato del legislador es claro: existe una obligación de interpretación integral del ordenamiento. En el caso de marras se debe integrar lo señalado por el Decreto Legislativo junto con los Decretos Ejecutivos, puesto que todos ellos establecen el esquema regulatorio en materia de la Isla de San Lucas, la cual no es solo un sitio de protección ambiental, sino un sitio de protección del patrimonio arquitectónico y de desarrollo de actividad turística sostenible. Todo lo anterior ya señalado por la Sala Constitucional en la sentencia que se transcribió en apartados anteriores. La integración normativa debe hacerse con fuentes de Derecho Público y sólo (sic) en el tanto en que en éste (sic) no se encontrare regulación, escrita o no escrita, alguna que contemple un supuesto de hecho similar, se puede acudir a otros ámbitos normativos; o a la determinación de una inconstitucionalidad.Lo pertinente en el presente caso, y de acuerdo al (sic) principio de integración del ordenamiento; no existe en la normativa impugnada una inconstitucionalidad de la Ley. Lo que sucedió con los accionantes es que no aplicaron ni analizaron las normas que se encuentran vigentes a este momento. En este orden de ideas, la Procuraduría General de la República, en Opinión Jurídica N. 39-99 de 24 de marzo de 1999, ha indicado: (…) Lo anterior obliga a establecer si el Derecho Administrativo, en sus fuentes escritas o no escritas, contiene disposiciones sobre el tema que alegan los accionantes, siendo pertinente señalar que la regulación de los Decretos No. 29277, 30714-C y 34282 se mantiene vigente; por lo que no existe inconstitucionalidad alguna. Con relación a la idea presentada por los accionantes en cuanto a que se cambia la categoría de manejo y se incluye una zona turística sin estudios.Señalan los accionantes que la Ley vigente convierte el área silvestre protegida en una zona de interés turístico y comercial; y que el aprovechamiento turístico sostenible es en realidad una forma para generar actividad comercial común disfrazada. Además, señalan que el artículo 6 reduce a zona turística las áreas del presidio, los predios, los senderos, zonas de playa. Todo sin estudios técnicos. En adición, que un proyecto turístico implica la tala de árboles. Además, sin contenido de fondo, indican que la Ley establece fines comerciales disfrazados de soluciones sostenibles en la fragmentación del área silvestre. Es así, aducen, que los artículos 3 y 16 permiten muelles, atracaderos, servicios de alimentación; como si fuera un parque de diversiones por ser números apertus. Además, consideran que el artículo 9 de la Ley permite concebir lo que serán áreas comerciales. De lo anteriormente indicado es claro que los accionantes no llevan razón.Primero, con relación a los artículos 3 y 9 de la Ley, señalan los impugnantes que se permite el desarrollo de muelles. Llevan razón, puesto que es pertinente señalar que, aunque no lo indica claramente, donde hay mar, ríos o lagos; hay muelles. Lo que debe generarse es todo un proyecto de turismo sostenible el cual, aparentemente no comprenden los accionantes. No obstante, en el mismo voto señalado (2010-013099), la Sala Constitucional, además que reconoció y admitió que en el manejo de la isla concurren varios actores públicos que deben actuar bajo los principios de unidad y coordinación; señaló que la constitucionalidad del resto del articulado del Decreto llevado en acción; y el posible desarrollo turístico que planteó el Decreto, debe ser de muy bajo impacto ambiental, respetando la protección del ambiente y de los bienes culturales existentes en la zona y que motivan los dos regímenes de protección que confluyen en ella.Eso es lo que claramente establece la Ley que intentan dejar sin efecto. En ese sentido, el Tribunal Constitucional indicó: (…) Véase que la misma Sala señala un deber de coordinación en cuanto al papel de las Instituciones, puesto que la protección del ambiente y del patrimonio histórico no están alejados del interés turístico. Todo lo contrario, la real interpretación del ordinal 50, en su clara dimensión, implica la existencia de lugares de esparcimiento para los seres humanos. El turismo, al cual atacan los accionantes; es un sector económico, una industria y un fenómeno social de la modernidad y la posmodernidad. Los viajeros siempre están motivados a visitar destinos atraídos por un elemento natural o algún elemento relevante asociado a la flora y fauna. El turismo sostenible es una forma de hacer y gestionar turismo. Existen dos visiones: desde el punto de vista de la oferta hay un modelo de gestión; es decir, cómo un destino trata sus recursos turísticos de una manera amigable con el medio ambiente, para que las comunidades del entorno sean beneficiarias y al mismo tiempo exista una retribución económica equitativa.Desde el punto de vista de la demanda, los visitantes son más conscientes y prefieren prácticas amigables con el medio ambiente. Tienen una visión ecológica y saben que con el dinero invertido aportan a la comunidad, además de contribuir a la conservación de un espacio natural o incluso de una especie de flora o fauna. Y esa sigue siendo la intención de la ley cuestionada, generando desarrollo de bajo impacto. Véase que el ordinal 6, que se intenta dejar sin efecto, señala claramente que: “Las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se indican, estarán afectadas a la condición de Zona turística.” Además, el artículo 16 establece que: “El Parque Nacional Isla San Lucas podrá desarrollar toda la infraestructura necesaria para facilitar el turismo sostenible, incluyendo la dotación de agua, electricidad, telecomunicaciones, higiene y saneamiento, muelles, atracaderos, servicios de alimentación y vías de acceso, información y comunicación en diversos formatos, así como la que estime pertinente para el provecho de los visitantes y asegurar el disfrute y apreciación de la riqueza histórica, arquitectónica y natural del parque.En la construcción de muelles, atracaderos y demás facilidades marítimas, el Instituto Costarricense de Puertos del Pacífico (lncop), el Ministerio de Obras Públicas y Transportes (MOPT) y el Instituto Costarricense de Turismo (ICT) suplirán el soporte técnico correspondiente a la Junta Directiva; asimismo, se faculta a estas instituciones para que construyan y den mantenimiento a las obras indicadas en esta norma.” Lo anterior, es conteste con lo que señaló la Sala Constitucional en la sentencia de marras, al afirmar, en cuanto al turismo sostenible que: (…) Obsérvese, que el mismo Tribunal Constitucional ha señalado claramente que: 1- El desarrollo es viable de la mano con la sustentabilidad ambiental. 2- Esta sustentabilidad tiene como objetivo proteger y conservar el medio ambiente y sus recursos naturales, en equilibrio con la diversificación económica y el mejoramiento de la calidad de vida humana. 3- Ejemplo de ello es la Certificación para la Sostenibilidad Turística que emite el Instituto Costarricense de Turismo como un componente de suma importancia, que denota un avance por proteger el derecho al ambiente sano y ecológicamente equilibrado a la vez de impulsar la diversidad económica a través del turismo 4- Se incluye, además, que la Ley de Fomento del Turismo Rural Comunitario, que instruye en dar un uso óptimo a los recursos ambientales que son un elemento fundamental del desarrollo turístico, manteniendo los procesos ecológicos esenciales y ayudando a conservar los recursos naturales y la diversidad biológica. 5- Además, existe el Código Ético Mundial para el Turismo, que señala que todos los agentes del desarrollo turístico tienen el deber de salvaguardar el medio ambiente y los recursos naturales, en la perspectiva de un crecimiento económico saneado, constante y sostenible, que sea capaz de satisfacer equitativamente las necesidades y aspiraciones de las generaciones presentes y futuras. 6- Se debe concebir la infraestructura y la programación de las actividades turísticas de forma que se proteja el patrimonio natural que constituyen los ecosistemas y la diversidad biológica. 7- El acceso equitativo del desarrollo no solo se establece en áreas urbanas. 8- El desarrollo de estas iniciativas legales genera acceso al desarrollo, en materia de oportunidades laborales, o en la calidad de vida. 9- El desarrollo rural, que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible.Es claro, entonces, que el artículo 6 que imputan de inconstitucional, lo que hace es recoger las intenciones de desarrollo sostenible que establece el Honorable Tribunal Constitucional. Es un resumen claro de lo dispuesto por la citada Sala. En adición, la ONU propuso el tema de los objetivos del desarrollo sostenible y a nivel nacional todas las instituciones están enfocadas en cumplirlos. En el país existen algunas instituciones públicas y privadas dedicadas promover el ecoturismo y turismo comunitario, la conformación de redes para el desarrollo del turismo sostenible. Se conoce entonces que una de las prioridades del ICT es promover el turismo sostenible desde el ecoturismo o el turismo comunitario; y esta ley genera ese elemento de promoción. Si organizaciones privadas en zonas urbanas realizan prácticas sostenibles implementando mecanismos ligados a conservar la naturaleza y a contribuir con las comunidades involucradas con la realización de actividades de responsabilidad social; es más pertinente y obligatorio desarrollarlo en Parques Nacionales.Conocen los accionantes que, cuando se establece el Parque Nacional la protección es mayor. Es pertinente señalar que este discurso de la sostenibilidad viene desde los años 80 con el informe Bruntland, cuando ya se empezó a hablar de la existencia de una sobrepoblación con un manejo inadecuado de los recursos del planeta. Y siendo Costa Rica un país que se visita por la biodiversidad, el objetivo de esta Ley es desarrollar actividad de protección con turismo de bajo impacto. Y es claro que una sola Institución no puede sostener económicamente el proyecto. Entonces, aparece una decisión de inclusión de diversas instituciones, que pueden utilizar sus presupuestos para el desarrollo sostenible del proyecto. Y, además, dicho desarrollo genera actividad turística que de forma directa provoca empleo, muy necesario en la sociedad nuestra luego de la pandemia del COVID 19. Por lo anterior, los artículos 6 y 16 son congruentes con el desarrollo sostenible y con las disposiciones de la Sala Constitucional ligadas con Isla San Lucas.(…) Es decir, ahí está el límite de la actuación de las administraciones que coordinarán el desarrollo sustentable de la Isla, sin que se violente el ambiente ni el patrimonio histórico: el plan maestro. No es la primera vez que un Decreto Legislativo regula la existencia de un plan maestro. El ejemplo más notorio es el que se encuentra vinculado al Proyecto Turístico Golfo de Papagayo. Obsérvese que el Reglamento al Plan Maestro General del Polo Turístico Golfo Papagayo, con la reforma aprobada por la Junta Directiva del ICT en sesión 3765/2011 (La Gaceta 84 del 2/5/2012), destaca, entre sus principios rectores, el respeto a las áreas silvestres protegidas y el libre acceso a las playas. Muestra de ello es lo que señalan los siguientes artículos: “Artículo 3.2 f: (…) “Es obligación del ICT y de los concesionarios garantizar el libre acceso a la zona pública de la zona marítimo terrestre, que debe estar dedicada al uso público y al libre tránsito de los turistas.Sólo (sic) en los casos de excepción previstos expresamente por la ley, está facultado que espacios de la zona pública de la zona marítimo terrestre sean concesionados”. Artículo 3.4 ibid.: Principios orientadores sobre el espacio turístico. “a) Libre uso de playas y acceso a vistas panorámicas: De acuerdo con el Ordenamiento jurídico vigente, la zona pública de cincuenta metros de ancho de la zona marítimo terrestre en las playas debe estar dedicada al uso público y al libre tránsito de los turistas. Corresponde primordialmente a la Oficina Ejecutora dictar las regulaciones y hacer cumplir las existentes que garanticen el respeto a esta normativa legal. Sólo (sic) en los casos de excepción previstos expresamente por la ley, está facultado que espacios de la zona pública de la zona marítimo terrestre sean concesionados”. “b) Respeto de las áreas protegidas:(…)” En adición, todo plan de uso del suelo debe ser revisado por los órganos competentes, de tal manera que la normativa vigente genera los elementos de protección pertinentes, los cuales se aplicarían en el caso de las revisiones que deben hacerse al plan maestro que se emita en caso de Isla San Lucas.Para ello, un miembro de la Junta Directiva es el Ministro o Ministra de Ambiente. Además, todo plan maestro, tal y como lo indica la misma Sala en varios de sus votos, debe ajustarse a los estudios de zonificación y reglamentos de zonificación. El mismo Tribunal Constitucional limita la emisión de los mismos en cuanto a que no deben fundarse en una reducción del área silvestre protegida. Entonces, conocen los accionantes y así lo ha determinado el Tribunal Constitucional, que el Plan Maestro deberá pasar por todas las regulaciones técnicas, en donde tendrán que intervenir las instituciones competentes, entre ellas el SINAC y SETENA. Además, es una orden de la misma Sala, por lo que la Ley solamente acata esa instrucción. En adición, se adjunta un primer Plan Maestro en donde la Honorable Sala Constitucional puede observar el esfuerzo por desarrollar un proyecto con las disposiciones emanadas del Tribunal de la Constitución.Obsérvese el conglomerado de entes que participaron en el desarrollo del plan, y que la Ley emanada junto con un plan como el que se propone implican una acción de verdadera coordinación. Reza el inicio del mismo con la siguiente leyenda: (…) En cuanto que se deja por fuera al representante del SINAC en la Junta Directiva. En el particular, tampoco llevan razón los accionantes, puesto que el jerarca de la materia ambiental está, por misma orden constitucional, dentro de los que deben constituir la Junta Directiva. Obsérvese que el ordinal 10 de la Ley indica que: “La Junta Directiva del Parque Nacional Isla San Lucas estará integrada por los siguientes miembros: a) La ministra o el ministro de Ambiente y Energía, quien lo presidirá, pudiendo actuar como suplente un viceministro o viceministra de la cartera. b) La ministra o el ministro de Cultura, pudiendo actuar como suplente un viceministro o viceministra de la cartera. c) La Presidencia Ejecutiva del Instituto Costarricense de Turismo (ICT), pudiendo actuar como suplente la persona que ostenta la gerencia o un integrante de la Junta Directiva de dicho instituto. d) Una persona representante del Poder Ejecutivo designada por el Consejo de Gobierno, órgano que nombrará, además, a una persona suplente. e) La alcaldesa o el alcalde de la Municipalidad del cantón Central de Puntarenas, pudiendo actuar como suplente una vicealcaldía. f) La presidenta o el presidente de la Cámara de Turismo de Puntarenas, pudiendo actuar como suplente alguno de los integrantes de la Junta Directiva de dicha cámara.El presidente o la presidenta de la Junta ostentará la representación judicial y extrajudicial del órgano. Asimismo, contará con voto de calidad en los términos del artículo 49 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. Los integrantes de la Junta Directiva no devengarán ninguna dieta.” Entonces, señalar que el representante del SINAC debe encontrarse en dicha posición no es de recibo. Sus argumentaciones se vinculan con el artículo 1 de la Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los países de América. No obstante, dicho ordinal establece las definiciones de una serie de institutos ambientales. Todo lo contrario, con relación a Parques Nacionales, dicho numeral establece que: “1.-Se entenderá por Parques Nacionales: Las regiones establecidas para la protección y conservación de las bellezas escénicas naturales y de la flora y la fauna de importancia nacional, de las que el público pueda disfrutar mejor al ser puestas bajo la vigilancia oficial.” De acuerdo con la anterior, no hay razones para establecer alguna inconstitucionalidad.Véase que, en cuanto a Isla San Lucas la vigilancia oficial estará vinculada a una Junta Directiva que administra ese Parque. Y es dentro de esa Junta Directiva que estará el jerarca en materia ambiental de la República: el Ministro o Ministra de Ambiente. Además, la representación del SINAC le corresponde al Ministro de Ambiente y Energía, por su condición de Presidente del CONAC, conforme con los artículos 24.1 de la Ley de Biodiversidad y 10.1 de su reglamento; quien además ostenta la representación legal de toda la cartera de Ambiente y Energía conforme con el artículo 7 del Reglamento Orgánico del MINAE y a tono con su condición de órgano jerárquico superior del ministerio según se establece por los artículos 25.2 y 28.1 de la LGAP. De acuerdo con lo anterior, tampoco es de recibo lo señalado por los accionantes. Además, según por lo indicado por la misma Sala Constitucional en la sentencia antes señalada: (…) Entonces lo que hizo la Ley fue lo mismo: incluir los entes antes indicados en la Ley, generando atribuciones claras en las potestades de la Junta Directiva.Es decir, implementó el espíritu de la sentencia constitucional. Con relación a la utilización de personal de seguridad privado. Considera esta representación que existe una indebida lectura del artículo 15 de la Ley, violentando además el espíritu interpretativo que establece el ordinal 10 del Código Civil. Obsérvese que el citado numeral 15 señala claramente que: “Para la vigilancia y seguridad del Parque Nacional Isla San Lucas se contará con la dotación necesaria de guardaparques del Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente y Energía (Minae), sin perjuicio de la posibilidad de que la Junta Directiva, directamente o por medio del fideicomiso de administración correspondiente, pueda contratar la seguridad que considere necesaria; dicho personal no tendrá autoridad de policía ni podrá ejercer funciones indelegables propias de la administración. Asimismo, podrá recurrir al auxilio del Ministerio de Seguridad en situaciones que así lo amerite.” Tampoco existe razón para modificarlo ni para declarar el artículo como inconstitucional.De la lectura literal del citado artículo, se establece que serán los guardaparques del SINAC los que realicen la labor de vigilancia y seguridad. Lo que señala el artículo es que, en aras de tener mayor protección del Parque, podría la Junta Directiva realizar acciones para la contratación de seguridad privada con el objeto de coadyuvar a los guardaparques en la vigilancia y seguridad de Isla San Lucas. Esta actividad es común en las diversas instituciones del país, sin que lo anterior signifique que se trasladan competencias. Es decir, lo que se realiza es una ampliación para efectos de tener una vigilancia y seguridad efectiva del Parque. En cuanto a que no pueden otorgarse concesiones en el parque. Señalan los accionantes que el artículo 7 junto con el 9, inc. l) establece la posibilidad de otorgar concesiones en el Parque, al regular éste (sic) lo siguiente: “El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos.Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar. En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones. Cualquier conflicto de competencias será dirimido por el ministro o la ministra de Ambiente y Energía.” Obsérvese nuevamente que el plan maestro señalará las actividades a las cuales se les puede otorgar permiso o concesión; siendo imposible la actividad de hospedaje y las actividades ligadas a los casinos. Además, el mismo plan, que debe ser aprobado por SINAC y SETENA, deberá analizar los aspectos ambientales. En adición, se le otorga una facultad al Ministro o Ministra de Ambiente: resolver posibles conflictos de competencia.Lo anterior implica la protección de los derechos constitucionales al ambiente y a la protección del patrimonio histórico. Se reitera que “turismo sostenible” proviene del concepto “desarrollo sostenible” enunciado por la Comisión Mundial sobre el Medio Ambiente y el Desarrollo de la Organización de las Naciones Unidas en 1987, como “el desarrollo que satisface las necesidades de la generación presente sin comprometer la capacidad de las generaciones futuras para satisfacer sus propias necesidades.” La Federación de Parques Naturales y Nacionales de Europa (F.P.N.N.E.), conocida como Federación EUROPARC, define el turismo sostenible como “toda forma de desarrollo, gestión y actividad turística que mantenga a perpetuidad la integridad ambiental, social y económica y el bienestar de los recursos naturales y culturales de la zona.” En adición, el artículo 39 de la Ley de Biodiversidad establece que: “Se autoriza al Consejo Nacional de Áreas de Conservación para que apruebe los contratos y las concesiones de servicios y actividades no esenciales dentro de las áreas silvestres protegidas estatales, excepto el ejercicio de las responsabilidades que esta y otras leyes le encomiendan, exclusivamente, al Poder Ejecutivo por medio del Ministerio de Ambiente y Energía (Minae), tales como la protección y vigilancia, la definición, el seguimiento de estrategias, los planes y los presupuestos de las áreas de conservación.Estas concesiones y contratos en ningún caso podrán comprender la autorización del acceso a elementos de la biodiversidad en favor de terceros o la explotación de recursos naturales; tampoco la construcción de edificaciones privadas. Los servicios y las actividades no esenciales serán: los estacionamientos, los servicios sanitarios, la administración de instalaciones físicas, los servicios de alimentación, las tiendas, la construcción y la administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación, mediante un estudio técnico que lo justifique. Estas concesiones y contratos podrán otorgarse única y exclusivamente a asociaciones de desarrollo comunal, cooperativas, microempresas inscritas en el Ministerio de Economía, Industria y Comercio (MEIC) u organizaciones sociales nacionales sin fines de lucro que tengan objetivos de apoyo a la conservación de los recursos naturales, que incorporen la gestión ambiental dentro de los procesos y área concesionada y con su personería jurídica vigente, siempre que se encuentren integradas y controladas directamente por habitantes de las comunidades ubicadas en la zona de influencia de la respectiva área silvestre protegida.Las áreas de conservación deberán brindar amplia información a estas comunidades sobre los servicios que decidan dar en concesión y establecer un registro de las organizaciones locales a efectos de garantizar la mayor participación posible en los procesos de contratación. El Instituto Nacional de Aprendizaje (INA), en coordinación con otras entidades educativas públicas y las municipalidades respectivas, creará programas de capacitación e instrucción técnica orientados prioritariamente a las comunidades ubicadas en la zona de influencia de las áreas silvestres protegidas, a fin de que puedan aprovechar los beneficios de esta disposición. Los concesionarios o permisionarios deberán presentar auditorías externas satisfactorias, realizadas en el último año; todo a juicio del Consejo Regional del Área de Conservación.” (Así reformado por el artículo único de la ley N° 9766 del 29 de octubre de 2019) Entonces, tampoco es inconstitucional lo señalado por los accionantes, siendo claro lo que dispone el citado artículo, el cual establece claramente que el Consejo Nacional de Áreas de Conservación puede aprobar contratos y concesiones de servicios y actividades no esenciales dentro de las áreas silvestres protegidas estatales.Lo que debe realizarse es un estudio integral del ordenamiento administrativo, tal y como lo disponen los ordinales 6 y 7 de la Ley General de la Administración Pública. Además, el Ministerio de Ambiente y Energía (Minae), deberá establecer las aprobaciones en cuanto a protección y vigilancia, el seguimiento de estrategias, los planes y los presupuestos de las áreas de conservación. Por ello la Ley previó esta situación de competencias que será solucionada por el Ministro o Ministra de Ambiente. Por otra parte, el ordinal 39 indicado refiere a que las concesiones y contratos en ningún caso podrán comprender la autorización del acceso a elementos de la biodiversidad en favor de terceros o la explotación de recursos naturales y tampoco la construcción de edificaciones privadas; por lo que, otra vez, ya la ley establece el límite. Por último, dicha regulación establece cuáles son los servicios y actividades no esenciales: los estacionamientos, los servicios sanitarios, la administración de instalaciones físicas, los servicios de alimentación, las tiendas, la construcción y la administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación, mediante un estudio técnico que lo justifique.Quienes pueden estar legitimados por estas concesiones y contratos son asociaciones de desarrollo comunal, cooperativas, microempresas inscritas en el Ministerio de Economía, Industria y Comercio (MEIC) u organizaciones sociales nacionales sin fines de lucro que tengan objetivos de apoyo a la conservación de los recursos naturales, que incorporen la gestión ambiental dentro de los procesos y área concesionada y con su personería jurídica vigente, siempre que se encuentren integradas y controladas directamente por habitantes de las comunidades ubicadas en la zona de influencia de la respectiva área silvestre protegida. Por lo anterior, tampoco es de recibo lo señalado por los accionantes. El límite de las concesiones se encuentra debidamente regulado en el artículo 39 de la Ley de Biodiversidad, la cual se encuentra vigente al momento de esta contestación. En cuanto a al alegado financiamiento incierto.Señalan los impugnantes que el artículo 17 de la Ley es inconstitucional. Dicho artículo establece que: “El Parque Nacional Isla San Lucas dispondrá de recursos financieros que le permitan ejercer sus mandatos con agilidad y eficiencia. Estos incluirán los recursos que le correspondan por ley del Sistema Nacional de Áreas de Conservación (Sinac), transferencias de los presupuestos de la República o donaciones de cualquier persona física o jurídica, así como los fondos propios que genere el ingreso al parque, la utilización de sus servicios, los cánones por concesiones y permisos y, en general, por el pago de las actividades realizadas dentro del parque. Los recursos regulados en la presente ley así como todos aquellos que produzca el parque, necesaria y exclusivamente serán invertidos en el mismo parque nacional. La fiscalización estará a cargo de la Contraloría General de la República. Luego el artículo 18 indica que: “Autorización para donar y subvencionar.Se autoriza a todo el sector público estatal, no estatal y financiero para que haga donaciones, inversiones e incluya subvenciones presupuestarias a favor del Parque Nacional Isla San Lucas. El Instituto Costarricense de Turismo (ICT) podrá transferir recursos económicos a la Junta Directiva del Parque Nacional Isla San Lucas para la realización de sus inversiones en desarrollo y actividades ordinarias; asimismo, podrá diseñar y realizar la promoción y el mercadeo para la visitación del parque. Podrá recibir, la Junta Directiva, donaciones de parte de organismos internacionales y gobiernos extranjeros interesados en coadyuvar en los fines del parque.” Además, el artículo 13 regula la posibilidad del uso de la figura del fideicomiso. Todo lo anterior es claro y debidamente regulado. Se establece claramente de dónde provienen los fondos; por lo que los supuestos que señalan los accionantes son nada más que eso, supuestos.Además, como en toda materia de recursos públicos existirá la obligación de control por parte de la Contraloría General de la República. La forma en que se establecen las posibilidades de financiamiento está apegada a derecho y más bien genera una mejor posibilidad de obtener recursos que no podrían ser si se mantiene una dirección exclusiva del SINAC. COMO COMPLEMENTO A TODO LO SEÑALADO La Ley cuya declaratoria de inconstitucionalidad se pretende, tiene como principal objetivo provocar la génesis de un nuevo parque nacional y patrimonio histórico y arquitectónico, el cual se ubica en la Isla San Lucas. Como ya se indicó anteriormente, la Isla San Lucas en la actualidad es un Área Silvestre Protegida, por lo tanto, ya está contenida dentro de una categoría de manejo, el pasarla a una categoría de Parque Nacional no genera mayor afectación a terceros ni a la zona marítimo terrestre. Tampoco a los Decretos antes señalados.Puede la Asamblea Legislativa, en su competencia de aprobar proyectos de ley, aprobar uno como el que se ha querido alegar como no apegado al derecho de la constitución. El carácter legal que genera la creación de dicho parque implica una mayor protección jurídica puesto que este debe ser reglamentado para la ejecución de diversas normas. La creación del nuevo parque nacional, el cual se ubica en la Isla San Lucas, implica una acción mayor a la que se obliga en el desarrollo de un parque nacional, puesto que le (sic) genera obligaciones a diversas instituciones. Además, como ya se ha indicado Isla San Lucas es ya área silvestre protegida, con patrimonio histórico y arquitectónico, y con posibilidad de visitas turísticas. Ante ello lo que ha señalado el Tribunal Constitucional, lo que debe existir es una actitud de coordinación, lo cual la Ley que se pretende dejar sin efecto lo regula de forma clara.Es así que, con relación a la materia legislada, no solo no es inconstitucional, sino que se ajustar a la realidad de lo que en verdad es y representa la Isla San Lucas: zona de protección, zona histórica y zona de atracción turística. El legislador involucra al Instituto Costarricense de Turismo (ICT), de manera directa en los siguientes aspectos: 1.- Como integrante de la Junta Directiva que se gesta para que se encargue a nivel director y decisor de la Administración del Parque Nacional. 2.- En la parte financiera, endilgándose competencias que implican presupuestar dineros correspondientes a la Institución en inversión del Parque Nacional, relacionados tanto con la construcción como el mantenimiento y la restauración de las obras. 3.- Con experiencia en la elaboración de Planes Maestros. 4.- Con capacidad de asesorar en la construcción de muelles, atracaderos y demás facilidades marítimas sostenibles, de lo cual se ha demostrado ante el Tribunal Constitucional, que generan mayor protección del ambiente cuando actúa en su desarrollo la Comisión de Marinas y Atracaderos Turísticos. 5.- En la promoción del destino turístico.Al respecto cabe indicar que, al contar el Instituto Costarricense de Turismo con áreas especializadas como la Comisión Interinstitucional de Marinas y Atracaderos, en el desarrollo de atracaderos, Departamento de Certificaciones y Responsabilidad Social Turística, así como, la Dirección de Mercadeo, su participación es relevante, de ahí que la participación del ICT es vital hasta para la generación de desarrollo económico del proyecto. como lo indica el artículo 9 de la Ley. En conclusión, el ICT es un actor importante, al formar parte de la Junta Directiva para la administración y gobierno del Parque Nacional Isla San Lucas y las obligaciones que se describen. Luego de la pandemia, el ICT tendrá que incluir durante la vigencia de esta ley, dentro de su presupuesto, los recursos económicos suficientes para cumplir con las erogaciones que se detallan en La Ley. Entonces, claramente esta Ley es visionaria, y trata de cubrir el interés público que tutela nuestra institución, señalando que no se observan violaciones a la Constitución en su formulación.Todo lo contrario, responde a las instrucciones de Sala Constitucional. Por las razones anteriores, esta representación considera que la acción de inconstitucionalidad debe ser denegada por no existir vicios de inconstitucionalidad que la fundamenten”.
133. 134Por escrito incorporado al expediente digital el 23 de abril de 2021, José Bourret Marín, cédula de identidad 118400114, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
134. 135Por escrito incorporado al expediente digital el 23 de abril de 2021, José Canales Morales, cédula de identidad 118440765, plantea coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
135. 136Por escrito incorporado al expediente digital el 23 de abril de 2021, Danny Villalobos, cédula de identidad 206430273, en representación de la Federación Costarricense para la Conservación del Ambiente, plantea coadyuvancia activa y requiere que la acción sea declarada con lugar. Expone “VIOLACION AL PRINCIPIO DE TUTELA CIENTIFICA Tal como quedó redactado el texto de la ley cuestionada tenemos que se echan de menos varies estudios científicos, que a la postre conllevan a un actuar regresivo y desde ese punto de vista amerita acoger la acción. Para iniciar, tenemos que las normas 3 y la 6 de cuerpo legal hablan de la delimitación geográfica de la isla tanto en su parte marina como la terrestre. Pero para elaborar ello nunca existió un estudio que autorizara a disminuir de 6 metros de profundidad, a 3 metros y ello transgrede el principio de proporcionalidad y el de razonabilidad y así pedimos que se disponga.Como ustedes verán, el texto de la ley es clarísimo en la norma 3 al disponer: "... El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m)..." Pero por que (sic), si antes de esta ley, se había dispuesto en el decreto que regulaba la parte marina, que el área de la isla se extendía hasta una profundidad de 6 metros, ¿cuál fue la idea de disminuir la protección? Por otro lado, si es que se hubiere justificado esa reducción de 6 a 3 metros de profundidad, dónde se compensó ambientalmente con otra área lo anterior? (sic) Como comprenderá esta Autoridad, la violación al principio de tutela científica es más que clara y ante ello, esta ley debe ser declarada como inconstitucional. El artículo 6 de la ley establece un área que se denomina como SECTOR AGUA. Y sobre ella se establecen unos puntos geográficos y se agrega: "Área del polígono denominado "Sector de agua" 746209.m2, equivalentes a 74ha6209, equivalente a 0.75 km2" La pregunta que sale y resalta es: ¿bajo cuales criterios científicos se estableció esa zona o sector?Y siendo que no existe razón de ser, tenemos que el hueco de información es más que claro. Valga aclarar, que es manifiesto que existía luego del voto constitucional No. 13099-2010 un agregado de 210 hectáreas que se sumaron a las ya protegidas, pero ¿qué pasó con esa área que evidentemente no fue contemplada o integrada en ese sector de agua? ¿Por qué existe una nebulosa sobre esas 201 hectáreas? Se supone que deberían seguir siendo protegidas, pero bajo ¿cuál tipo de manejo? ¿Por qué hacer diferencias entre un área de parque nacional y otra de refugio? Como nada es claro, amerita acoger la acción. Como se comprenderá la parte marina ha sido descuidada y con ella también toda la biodiversidad y la riqueza arqueológica, pues debe saberse que existen muchos naufragios documentados en los alrededores de la isla y por ello pido que se acoja la acción. En esta línea pido que se pida criterio al Museo Nacional.En la parte terrestre tenemos que tanto en el artículo 3, como en el 6, de la norma se establecen sitios diferenciados, pero NO existe justificación científica que valide ello y por tanto se podría estar poniendo en riesgo la biodiversidad en cuanto a la flora y la fauna. Es más que claro que la fragmentación con tratos diferenciados en la parte terrestre se hace para ubicar concesiones comerciales (ver artículos 9 inciso d y 14 inciso g) y esto es inconstitucional en un parque nacional en el tanto que la misma Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América prohíbe esos usos. Esta convención señala: "ARTICULO III.... Las riquezas existentes en ellos no se explotarán con fines comerciales" Pedimos que se vea y aprecie que el Parque es de una riqueza paisajística enorme, entonces las concesiones son para aprovecharse de eso y poder lograr lucro a los empresario (sic) que obtengan concesiones.Por todo ello, pedimos que se declare la inconstitucionalidad por violar principios de derecho ambiental y hasta la convención referida. VIOLACION (sic) AL PRINCIPIO DE REDUCCION (sic) DE AREAS (sic) SILVESTRES PROTEGIDAS En la misma línea anterior, se encuentra, con el otorgamiento de concesiones comerciales y de actividades o servicios esenciales y no esenciales en bloque, que se podría venir a tomar decisiones por de la junta directiva que administrara el parque de forma que solo se busque el lucro y ello conllevaría a estar ante daños irreversibles. No estamos diciendo que con los servicios lucro y ello conllevaría a estar ante daños irreversibles. No estamos diciendo que con los servicios esenciales y no esenciales se genera un daño, sino con el impacto del conjunto de actividades que existirían donde algunas sedan comerciales, como lo autoriza la misma norma cuestionada en los artículos 9 inciso d y 14 inciso g. En conjunto os claro que el artículo 3 de la ley y el G conllevaron a dividir el parque en zonas sin que mediaran estudios y lo peor es que ello se hace en disminución tacita de sitios que hasta ahora habían estado destinados a la protección y regeneración de los ecosistemas.Por ello, aunque toda la isla sigue siendo un área silvestre protegida, tácitamente se busca abrir a actividades que podrían traer perjuicios y daños ambientales. No lo decimos simplemente por decirlo, sino que su Autoridad lo debe apreciar así, pues nunca existió un estudio que valorara la segmentación cuestionada. No podemos terminar sin decir que nos parece totalmente inconstitucional que en este parque se autorice a hacer atracaderos y puertos puesto que ello no debe ser permitido en un sitio como la Isla San Lucas que ha tenido un periodo de regeneración en su parte marina y la terrestre a través de los años. La verdad, abrir a concesiones de empresas que llegarán con barcos o botes en diferentes muelles es algo irracional en un parque nacional que podría afectar incluso el numeral 89 constitucional por afectación al paisaje. También el paisaje marino se podría afectar por la entrada y salida de embarcaciones al sitio dadas las facilidades mencionadas que ahora no existen.Nunca existió un estudio previo que midiera el impacto de hacer muelles o atracaderos y por ello el artículo 16 de la ley tiene un vicio de inconstitucionalidad. Por todo lo señalado, pedimos que se declare la inconstitucionalidad de toda la ley. A los efectos pedimos que se disponga que tenemos legitimación para accionar pues existen intereses difusos de por medio. Nuestro fundamento, son los numerales 50 y 89 constitucionales”.
136. 137Por escrito incorporado al expediente digital el 23 de abril de 2021, se apersona Julio Jurado Fernández, en su condición de procurador General de la República. Explica que: “I OBJETO DE LA ACCION LA LEGITIMACIÓN DEL ACTOR DERIVA DE UN INTERÉS DIFUSO QUE EXISTE EN LA MATERIA La acción tramitada bajo el expediente 21-5756-007-CO ha sido interpuesta para que se declare la inconstitucionalidad de la Ley N.° 9892 de 24 de agosto de 2020. Sumariamente, los argumentos en que los actores sustentan su acción pueden ser sintetizados de la siguiente forma. Los actores consideran que la Ley N.° 9892 es inconstitucional porque reduce el área silvestre protegida sin justificación técnica al recortar el área marítima. Asimismo, se argumenta que se ha producido un cambio de manejo y se creado una zona turística que modifica el uso del suelo sin respaldo en criterios técnicos. Luego, se alega que la Ley le establece fines comerciales a la zona turística que son incompatibles con la tutela ambiental de un área silvestre protegida.Después, aduce que el modelo de gobernanza del parque nacional violenta la tutela ambiental al excluir al Sistema Nacional de Áreas de Conservación y que se violenta también el régimen de protección al permitir que se contrate seguridad privada. Finalmente, se considera inconstitucional porque se habilita la posibilidad de otorgar concesiones en un área silvestre protegida y porque su financiamiento es incierto. La legitimación de los actores se encuentra en el interés difuso que constitucionalmente se ha reconocido en relación con la tutela del medio ambiente. II LA LEY N.°9892: UN CAMBIO EN LA CATEGORIA DE MANEJO DE LA ISLA SAN LUCAS La Ley N.° 9892 de 24 de agosto de 2020 ha creado el Parque Nacional Isla San Lucas modificando en consecuencia la categoría de manejo que hasta ese momento se aplicaba en relación con esa Área Silvestre Protegida. Por Decreto Ejecutivo N.° 29277 de 11 de enero de 2001, el Poder Ejecutivo declaró la Isla San Lucas como Refugio Nacional de Vida Silvestre.La Ley N.° 9892 modifica la categoría de manejo de la Isla San Lucas. El artículo 1 de aquella Ley ha creado el Parque Nacional Isla San Lucas. Se transcribe la disposición en mención: ARTÍCULO 1-Creación. Se crea el Parque Nacional Isla San Lucas, que además de su condición de área silvestre protegida, será patrimonio histórico - arquitectónico y zona de aprovechamiento turístico sostenible, en las áreas específicas que se determinan en la presente ley. Sin embargo, la Ley N.° 9892 no solo ha creado el Parque Nacional Isla San Lucas, sino que ha incorporado un sector de la Isla al patrimonio histórico-arquitectónico, y ha creado, en la Isla, una denominada “Zona de Aprovechamiento Turístico Sostenible”. El artículo 5 de la Ley N.° 9892 ha declarado que el conjunto de edificaciones del antiguo presidio “San Lucas” sea incorporado al Patrimonio Histórico Arquitectónico de la Nación. La norma obliga al Ministerio de Cultura a levantar y mantener actualizado un inventario de ese patrimonio para su conservación.ARTICULO 5- Significación cultural e histórica. Se declaran patrimonio histórico - arquitectónico el conjunto de las edificaciones del antiguo presidio San Lucas; el Estado deberá restaurar y preservar este patrimonio para el disfrute y conocimiento de las actuales y futuras generaciones. El Ministerio de Cultura deberá realizar un inventario del patrimonio citado y de su estado de conservación, actualizándolo periódicamente, todo lo cual comunicará al Ministerio de Ambiente y Energía (Minae) y a la entidad encargada de la administración de la isla.” El artículo 6 de la Ley N.° 9892 crea, en la Isla San Lucas, una denominada “Zona Turística”. La Ley N.° 9892 ha creado un Parque Nacional en la Isla San Lucas y, sin embargo, de forma simultánea la norma ha afectado una serie de áreas de la Isla San Lucas – áreas delimitadas por la Ley – a la condición de Zona Turística. De acuerdo con la Ley N.° 9892, las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y particulares zonas de playa están afectadas a la condición de Zona turística.Se transcribe, en lo conducente, el artículo 6: ARTICULO 6- Zona turística. Las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se indican, estarán afectadas a la condición de Zona turística. El numeral 6 divide la Zona Turística en cuatro sectores: a) El sector Histórico, b) El sector de Recreo Playa El Coco, c) El Sector Senderos, y d) El Sector Aguas. Cabe destacar que en total la Zona Turística equivale a 138 hectáreas de un total de 462 hectáreas que es la extensión total de la Isla San Lucas. El artículo 3 de la Ley delimita la totalidad del Parque Nacional Isla San Lucas y establece que el Parque tiene una porción terrestre y un área marina costera. La norma establece, en su última parte que, dentro de las dos áreas anteriores, debe existir un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística.ARTÍCULO 3- Delimitaciones. El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera. La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo, Edición 3-IGNCR en la latitud norte 9º 55' 55" - 9 57' 20" y longitud oeste 84º 53' 23", con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha). El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m). Inserto, dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística. A la luz del artículo 3, debe entenderse que el Plan Maestro previsto en el artículo 7 de la Ley N.° 9892, debe incorporar un modelo de gestión diferenciado para la Zona Turística de la Isla de San Lucas.Modelo de gestión diferenciado que debe responder, si bien con criterios técnicos, al fomento de la actividad turística sostenible. Al respecto, el mismo artículo 7 habilita a la administración para que otorgue concesiones y permisos en la zona turística, para actividades e instalaciones distintas del servicio de parques, sin que se permitan los servicios de hospedaje y juegos de azar. El artículo 7 de la Ley N.° 9892 ha establecido entonces que la denominada Zona Turística de la Isla San Lucas deba administrarse conforme un modelo de manejo diferenciado respecto del plan de gestión del resto del Parque Nacional. Corolario de lo anterior, la Zona Turística de la Isla San Lucas no solo está afecta a un fin público concreto, sea el de fomentar el turismo sostenible e inclusivo, sino que su gestión debe responder a un plan de manejo diferenciado – respecto de aquel del Parque Nacional - dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental.En resumen, la Ley 9892 ha creado el Parque Nacional Isla San Lucas, lo cierto es que la misma Ley ha creado también dentro de ese Parque Nacional, un área, equivalente a una quinta parte del área del Área Silvestre Protegida, que se debe administrar conforme con un plan de manejo diferenciado respecto del resto del Parque Nacional. Área que está afectada a un fin público específico, sea la promoción del turismo sostenible. Cabe advertir que, pese a que la Ley N.° 9892 dispone, en su artículo 3, que en el Parque Nacional debe existir una Zona Turística y un Área dedicada a la Conservación, la Ley es escasa y somera en previsiones y regulaciones en relación con el manejo del Área Silvestre Protegida, particularmente con su gestión ambiental. El artículo 4.a ha previsto que uno de los fines del parque es la conservación del patrimonio natural. El artículo 9.b establece que una de las funciones de la Junta Directiva del Parque es contribuir con la protección y conservación ambiental del parque nacional.En su parte final, el mismo artículo 9 establece que en materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y que, para la protección de la vida silvestre y conservación de la biodiversidad de la isla, prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación. No obstante que la Ley 9892 crea el Parque Nacional Isla San Lucas, no contiene una regulación específica sobre el manejo de la zona de la isla que corresponde al área propiamente de conservación. III LOS PARQUES NACIONALES SON AREAS (sic) SILVESTRES PROTEGIDAS DE PROTECCION ABSOLUTA A tenor del artículo 32 de la Ley Orgánica del Ambiente, los Parques Nacionales son un tipo de Área Silvestre Protegida. Se distingue de los otros tipos de áreas silvestres protegidas por su categoría de manejo.El artículo 58 de la Ley de Biodiversidad ha establecido que, en general, las Áreas Silvestres Protegidas están dedicadas a la conservación y protección de la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas. “ARTÍCULO 58.- Áreas silvestres protegidas Las áreas silvestres protegidas son zonas geográficas delimitadas, constituidas por terrenos, humedales y porciones de mar. Han sido declaradas como tales por representar significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural. Estas áreas estarán dedicadas a conservación y proteger la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general. Los objetivos, la clasificación, los requisitos y mecanismos para establecer o reducir estas áreas se determinan en la Ley Orgánica del Ambiente, No. 7554, de 4 de octubre de 1995.Las prohibiciones que afectan a las personas físicas y jurídicas dentro de los parques nacionales y las reservas biológicas están determinadas, en la Ley de la Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977. Durante el proceso de cumplimiento de requisitos para establecer áreas silvestres protegidas estatales, los informes técnicos respectivos deberán incluir las recomendaciones y justificaciones pertinentes para determinar la categoría de manejo más apropiada a que el área propuesta debe someterse. En todo caso, el establecimiento de áreas y categorías tomará muy en cuenta los derechos previamente adquiridos por las poblaciones indígenas o campesinas y otras personas físicas o jurídicas, subyacentes o adyacentes a ella.” Específicamente, los Parques Nacionales son áreas geográficas terrestres, marinas, marino-costeras, de agua dulce o una combinación de éstas (sic), de importancia nacional, establecidas para la protección y la conservación de las bellezas naturales y la biodiversidad, así como para el disfrute por parte del público.Estas áreas presentan uno o varios ecosistemas en que las especies, hábitat y los sitios geomorfológicos son de especial interés científico, cultural, educativo y recreativo o contienen un paisaje natural de gran belleza. (Ver artículo 70 del Reglamento a la Ley de Biodiversidad, Decreto Ejecutivo N.° 34433 de 11 de marzo de 2008) El artículo 18 bis de la Ley Forestal cataloga a los Parques Nacionales como áreas silvestres protegidas de protección absoluta. El artículo 12 de la Ley del Servicio de Parques Nacionales ha establecido que en un Parque Nacional no pueden otorgarse concesiones para la explotación de productos de los parques nacionales, ni otorgarse permiso para establecer instalaciones distintas a las del Servicio Nacional de Parques Nacionales. ARTICULO 12.- No pueden otorgarse concesiones de tipo alguno para la explotación de productos de los parques nacionales, ni otorgarse permiso para establecer otras instalaciones que las del Servicio.En congruencia con lo anterior, en el voto N.° 16975-2008 de las 14:53 horas del 12 de noviembre de 2008, la Sala Constitucional ha indicado que el otorgamiento de concesiones en Parques Nacionales es irreconciliable con los objetivos de las Áreas Silvestres Protegidas de conservación absoluta, sea Parques Nacionales y Reservas Biológicas: “la concesión es el medio normal de aprovechamiento de las áreas de la zona marítimo terrestre administradas por las Municipalidades (Ley 6043, art. 39) e irreconciliable con los objetivos de ciertas Áreas Silvestres Protegidas, de conservación absoluta; por ejemplo, parques nacionales y reservas biológicas. Por esa razón, el Decreto sería contrario a la Ley de Parques Nacionales, N° 6084 (art. 12), que prohíbe otorgar concesiones para la explotación de productos de los parques nacionales o para establecer otras instalaciones que las del Área de Conservación del MINAE, antes Servicio de Parques Nacionales.Por su parte, la Ley de Biodiversidad, N° 7788, artículo 39, contiene otra prohibición de otorgar concesiones dentro de las áreas silvestres protegidas estatales que autoricen el acceso a los elementos de la biodiversidad a favor de terceros o la construcción de edificaciones privadas.” De acuerdo con el numeral 18 bis de la Ley Forestal, también puede autorizarse el aprovechamiento de las fuentes de agua superficiales de los parques nacionales cuando medie una justificación de interés público. De conformidad con el voto de la Sala Constitucional N.° 17397-2019 de las 12:54 horas del 11 de setiembre de 2019, aquel aprovechamiento está justificado sólo (sic) por valores constitucionales, particularmente porque el Estado debe garantizar el acceso al agua potable para así defender el derecho fundamental a disfrutar de ese recurso. En el voto N.° 17397-2019 se han delimitado las condiciones y requisitos para que se pueda aprovechar las fuentes de agua de los parques nacionales y las reservas biológicas: “En este sentido, se puede observar que la normativa cuestionada establece una serie de requisitos y restricciones a la hora de realizar la actividad de aprovechamiento del agua en el patrimonio natural del Estado.Para un mejor análisis, se expondrán estos requisitos y restricciones. Primero que todo, el artículo le otorga al Ministerio de Ambiente y Energía la potestad de autorizar el aprovechamiento de agua proveniente de fuentes superficiales y la construcción, operación, mantenimiento y mejoras en los sistemas de abastecimiento de agua en inmuebles que integran el patrimonio natural del Estado siempre y cuando se cumplan los siguientes requisitos: La existencia de una declaración previa de interés público emitida por el Poder Ejecutivo; La existencia de un abastecimiento poblacional imperioso a favor de los entes autorizados prestadores del servicio de agua como son el Instituto Costarricense de Acueductos y Alcantarillados, las Municipalidades, la Empresa de Servicios Públicos de Heredia y las Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados; Las obras deberán ser ejecutadas con base en estudios técnicos, procurando el menor impacto ambiental posible según el instrumento de evaluación de impacto ambiental que corresponda y en estricto cumplimiento de la normativa ambiental vigente, en especial Las obras deben realizarse con lo dispuesto sobre los criterios técnicos aplicables para la intervención de áreas silvestres protegidas contemplados en la Ley No. 7788, Ley de Biodiversidad, de 30 de abril de 1998, y sus reglamentos.Igualmente, este artículo determina una protección mayor a las áreas silvestres protegidas de protección absoluta como son los parques nacionales y las reservas biológicas. Estos requisitos adicionales son los siguientes: Cumplir con lo dispuesto en el artículo 38 de la Ley N.º 7554, Ley Orgánica del Ambiente, de 4 de octubre de 1995; Los estudios técnicos que se realicen deberán demostrar que no existe otra fuente alternativa disponible para garantizar el abastecimiento de agua para la población beneficiaria en condiciones adecuadas de calidad y cantidad Las actividades propuestas deberán contar, de manera previa, con el aval técnico del Instituto Costarricense de Acueductos y Alcantarillados.” En los Parques Nacionales, la pesca deportiva y artesanal solamente está permitida previo dictamen afirmativo del Consejo Asesor de Parques Nacionales y siempre que se compruebe que no producirán alteraciones ecológicas.(Artículo 10 de la Ley de Parques Nacionales) Aunque el artículo 8 de la Ley de Parques Nacionales habilita la posibilidad de que se reciban visitantes, la misma norma es clara en que está prohibido realizar, dentro del respectivo parque, cualquier tipo de actividad comercial, agrícola o industrial. Es decir, que el turismo que reciban los parques nacionales, no justifica la posibilidad de que se pretenda desarrollar en ellos actividades comerciales, agrícolas o industriales. Importa advertir que la posibilidad de que los parques nacionales reciban visitantes, está enmarcada dentro del concepto de ecoturismo. El artículo 18 de la Ley Forestal, establece la posibilidad de que se autorice actividades de ecoturismo en el Patrimonio Natural del Estado, incluyendo los Parques Nacionales. El ecoturismo es una actividad orientada a mantener un ambiente natural, con énfasis en sus rasgos biológicos, físicos y culturales, mediante un proceso controlado que garantice el mínimo impacto ambiental.Debe ser ecológicamente sostenible, involucra actividades turísticas de bajo impacto, y es localmente beneficioso y satisfactorio para los visitantes. La definición normativa de ecoturismo se encuentra en el inciso n) del artículo 2 del Reglamento a la Ley Forestal, Decreto Ejecutivo N.° 25721 de 17 de octubre de 1996, reformado por Decreto Ejecutivo N° 35868 del 24 de marzo de 2010) En la sentencia de la Sala Constitucional N.° 16975-2008 de las 14:53 horas del 12 de noviembre de 2008, señaló que no es válido autorizar, particularmente en parques nacionales y reservas biológicas, actividades de turismo diferentes del ecoturismo que respondan, más bien, “a una nueva orientación económica, que brinda menor protección que el régimen anterior, para las áreas de conservación estricta o parques nacionales”. Se indicó en dicha sentencia: IX.- Por último, el Decreto impugnado deroga el artículo 11 del Reglamento a la Ley Forestal (art 9° del Decreto 31750), el cual disponía que: "Las labores de investigación y ecoturismo contempladas en el artículo 18 de la Ley, cuando se trate de facilidades para hospedaje dentro de las áreas del Patrimonio Natural del Estado, se limitarán a estructuras rústicas, de acuerdo con el entorno natural, orientadas principalmente al hospedaje de investigadores y secundariamente turistas, con tal de no interferir o competir con el bienestar de las poblaciones locales en el área de amortiguamiento".Condicionaba las construcciones a estructuras rústicas permitidas en el Patrimonio Natural del Estado, más acordes con el ecoturismo y el Decreto viene a autorizar una nueva orientación económica, que brinda menor protección que el régimen anterior, para las áreas de conservación estricta o parques nacionales. Aparte de suprimirse la exigencia de las estructuras rústicas, el Decreto (artículo 3°) permite construcciones de hasta tres niveles y utilizar considerables espacios, sin precisar el sitio en que se ubicarán, en la ejecución de los proyectos y actividades (15% del área en concesión para bosques primarios y 25% para bosques secundarios), con las transformaciones o alteraciones ambientales que se seguirían en el suelo edificado. Las áreas silvestres públicas, de las que es guardián el Estado, conforman ecosistemas frágiles de gran biodiversidad, cuyos daños pueden producir consecuencias irreversibles e impedir la preservación de los recursos a largo plazo.Lo anterior, impone una cuidadosa valoración de los costos ambientales y beneficios sociales anejos a los proyectos y actividades a ejecutar dentro de ellas.-“La autorización de actividades de ecoturismo en un parque nacional o en una reserva biológica, debe sujetarse a criterios científicos y técnicos de sustentabilidad. Al respecto, cabe citar el voto de la Sala Constitucional N.° 13099-2010 de las 14:56 horas del 4 de agosto de 2010, relativo al Decreto Ejecutivo N.° 34282 “Decreto que rectifica, delimita y amplia los límites del Refugio Nacional de Vida Silvestre Isla San Lucas y declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla”: Esta Sala estima que el desarrollo rural, que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible. De ahí que si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones.Al tenor del artículo 11 del reglamento a la Ley Forestal, en las Áreas Silvestres Protegidas sólo (sic) se permite realizar actividades de capacitación, ecoturismo e investigación, cuando estén sujetas a lo establecido en su respectivo Plan de Manejo. En el caso de las Áreas Silvestres Protegidas a excepción de los Parques Nacionales y las Reservas Biológicas, las actividades de ecoturismo se pueden realizar única y exclusivamente en las zonas establecidas por el Sistema Nacional de Áreas de Conservación de conformidad con la zonificación de cada Área Silvestre Protegida. En ningún caso la zona de ecoturismo puede suponer la afectación de esa zona del área silvestre protegida a un fin distinto al de la protección de los ecosistemas, garantía de preservación del medio ambiente y tutela de los recursos naturales y culturales. IV A PESAR DE CREAR UN PARQUE NACIONAL, LA LEY N.° 9892 DISMINUYE EL NIVEL DE PROTECCIÓN AMBIENTAL DE LA ISLA SAN LUCAS La Ley N.° 9892 ha establecido que la Isla San Lucas sea un parque nacional.El Decreto Ejecutivo N.° 29277 de 11 de enero de 2001 había creado en aquella isla un Refugio Nacional de Vida Silvestre. Los refugios de vida silvestre son áreas geográficas que poseen ecosistemas terrestres, marinos, marino-costeros, de agua dulce o una combinación de estos. Sus fines principales son la conservación, la investigación, el incremento y el manejo de la flora y la fauna silvestres, en especial de las que se encuentren en vías de extinción. En los refugios estatales está autorizado el ecoturismo. (Ver artículo 70 del Reglamento a la Ley de Biodiversidad, Decreto Ejecutivo N.° 34433 de 11 de marzo de 2008) El Decreto Ejecutivo N.° 34282 de 25 de enero de 2008 declaró de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla San Lucas. Artículo 2º-Declárese de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos del presente decreto, así como la conservación y restauración de las edificaciones del antiguo penal en la Isla San Lucas.Las dependencias de la Administración Pública y del Sector Privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la Isla. Sin embargo, en el voto N.° 13099-2010 ya citado se acotó que: “La declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible, que señala el numeral 2, deberá entenderse constitucional mientras que la conservación y restauración de las edificaciones del antiguo penal y aquellas que fueron construidas con ocasión de su existencia, queden circunscritas a las labores de conservación, protección y mejoramiento de su entorno. Lo mismo debe ocurrir con los sitios arqueológicos y el cementerio ubicado en Playa Cocos, sin perjuicio, claro está, de los estudios arqueológicos y científicos que deberán ser objeto.” De acuerdo con el artículo 5 del Decreto Ejecutivo N.° 34282, la actividad turística en la Isla San Lucas debía ajustarse a un Plan Maestro de Desarrollo Turístico Sostenible, que debía comprender un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural de esa área específica.El Plan Maestro de Desarrollo Turístico Sostenible, debía ser sometido a la Secretaría Técnica Nacional Ambiental del Ministerio de Ambiente y al Ministerio de Cultura, Juventud y Deportes para su aprobación, de conformidad con los requisitos y procedimientos establecidos por el ordenamiento jurídico. En el voto N.° 13099-2010 se indicó, también, que toda actividad económica o productiva que intervenga o utilice el medio ambiente, particularmente los ecosistemas de los Parques Nacionales y, en específico, en la isla San Lucas, debe responder a la filosofía del desarrollo sostenible según el impacto que tenga en él, pues es constitucionalmente relevante controlar las repercusiones que pueda generar en el ambiente. Se transcribe otra vez el voto N.° 13099-2010: IX.- Sobre las implicaciones del desarrollo sustentable y el turismo.- La piedra angular del desarrollo está en la sustentabilidad ambiental, tiene como objetivo proteger y conservar el medio ambiente y sus recursos naturales, en equilibrio con la diversificación económica y el mejoramiento de la calidad de vida humana.La idea medular de los principios de derecho ambiental radica en la utilización racional de los recursos naturales, con la protección del medio ambiente para asegurar la sustentabilidad de las generaciones presentes y futuras. Toda actividad económica o productiva que intervenga o utilice el medio ambiente, debe responder a la filosofía del desarrollo sostenible según el impacto que tenga en él; en ese sentido, al fundarse el Poder Ejecutivo en este tipo de objetivos para el desarrollo económico y social, estima esta Sala que el turismo rural como tal, debe responder a esos valores que protegen el desarrollo sostenible, porque no podría ser la excepción, y es constitucionalmente relevante controlar las repercusiones que pueda generar en el ambiente. La actividad turística en el antiguo Refugio Nacional de Vida Silvestre de San Lucas, debía estar estrictamente sujeta a criterios técnicos que aseguraran la posibilidad de mantener un ambiente natural en la isla, con énfasis en sus rasgos biológicos, físicos y culturales, mediante un proceso controlado que garantizara el mínimo impacto ambiental.La normativa vigente exigía que las actividades de turismo en la Isla fuesen de bajo impacto. Al amparo del Decreto Ejecutivo N.° 34282 el desarrollo de la infraestructura en el Refugio Nacional de Vida Silvestre de la Isla San Lucas, debía ser compatible con los principios de sustentabilidad ambiental, su protección y conservación. Estaba vedada la construcción de obras de infraestructura de gran envergadura, dado que esto implicaría un cambio sustancial al uso de suelo. Se transcribe el voto 13099-2010 otra vez: El desarrollo de la infraestructura debe ser compatible con los principios de sustentabilidad ambiental, su protección y conservación, por el contrario serían cuestionables constitucionalmente sí se realizaran obras que no tuvieran en cuenta los regímenes de protección vigentes en la Isla, como la construcción de obras de infraestructura de gran envergadura, dado que la vigencia del régimen como área protegida implicaría un cambio sustancial al uso de suelo, y no por las obras humanas que existieron mucho antes de la declaratoria de la Isla como Área Silvestre Protegida y de patrimonio histórico-arquitectónico.Bajo la categoría de Refugio Nacional de Vida Silvestre, la infraestructura construida en San Lucas, destinada para el uso del turista, debía estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos. Las instalaciones construidas debían ser solamente las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implicara que se pudiera extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encontraran sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica. Nuevamente, se cita el voto N.° 13099-2010: En cuanto a la infraestructura destinada para el uso del turista, ésta (sic) deberá estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos y a esta (sic), las instalaciones que se deberán construir serán las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica.Reconoce este Tribunal que se trata de un verdadero reto lograr la conservación y recuperación de las edificaciones de la Isla, así como su puesta en valor, incluidas –por ejemplo- las casas de madera ubicadas en el lugar conocido como “Las Jachas” y sus alrededores, la Enfermería, la Capilla, Edificio de Administración, y otra infraestructura necesaria para ofrecer servicios limitados del turismo de naturaleza y el eco-turismo, entre tanto, se responda a criterios de sustentabilidad, de lo contrario, conllevaría un roce de relevancia constitucional de los artículos 50 y 89. En cuanto a los incisos a) y b) del numeral 5 deberán entenderse constitucionales en la medida en que lo pretendido en el Plan Maestro se ajuste a lo señalado por esta Sala, especialmente en el tanto los estudios de zonificación y reglamentos de zonificación no se encuentran fundados en una reducción del área silvestre protegida en el 5.5% del área.A pesar de que Ley N.° 9892 ha establecido que la Isla San Lucas sea un parque nacional – que debería ofrecer un mayor nivel protección a los recursos naturales, culturales e históricos de la Isla San Lucas -, lo cierto es que la Ley N.° 9892 disminuye el nivel protección de la isla. La Ley N.° 9892 crea un parque nacional en la Isla San Lucas, pero además ha creado, en la misma isla, una denominada Zona de Aprovechamiento Turístico Sostenible, para todos los efectos denominada Zona Turística. El artículo 6 de la Ley N.° 9892 ha afectado una serie de áreas de la Isla San Lucas – áreas delimitadas por la Ley y que equivalen a una quinta parte de su extensión– a la condición de Zona Turística. De acuerdo con la Ley N.° 9892, las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y particulares zonas de playa están afectadas a la condición de Zona turística.De la relación entre los numerales 3 y 7 de la Ley N.° 9892, se desprende que el Plan Maestro de la Isla, debe incorporar un modelo de gestión diferenciado para la Zona Turística de la Isla de San Lucas. Modelo de gestión diferenciado que debe responder, si bien con criterios técnicos, al fomento de la actividad turística sostenible más que a criterios de conservación y preservación de los recursos naturales y culturales. Este Plan Maestro tampoco debe ser sometido a aprobación por parte la Secretaría Técnica Nacional Ambiental. De acuerdo con la Ley N.° 9892, la Zona Turística de la Isla San Lucas no solo está afecta a un fin público concreto distinto de la tutela ambiental -sea el de fomentar el turismo sostenible e inclusivo- sino que su gestión responde un plan de manejo diferenciado respecto de aquel del Parque Nacional, dedicado a regular la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental.En razón de lo anterior, y a pesar de que la Ley N.° 9892 ha creado un Parque Nacional, lo cierto es que su aprobación y promulgación implica un cambio en las actividades permitidas en un área significativa de la Isla San Lucas. Tómese en cuenta que el numeral 6 de aquella Ley dispone que cuatro sectores – a saber a) El sector Histórico, b) El sector de Recreo Playa El Coco, c) El Sector Senderos, y d) El Sector Aguas – forman parte de una Zona Turística, esto equivale a 138 hectáreas de un total de 462 hectáreas que es la extensión total de la Isla San Lucas. En esta zona, la Ley N.° 9892 implica la posibilidad de realizar actividades compatibles con el desarrollo del turismo, fin distinto de la tutela ambiental y cultural. Al respecto, importa advertir que el artículo 2 de la Ley N.° 9892 ha declarado de interés nacional y de alta prioridad el desarrollo turístico de la Isla San Lucas.De conformidad con el artículo 2, el desarrollo turístico sostenible de la Isla lo será sin perjuicio de las funciones de conservación y restauración del patrimonio natural y cultural. ARTÍCULO 2- Interés nacional. Se declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos de la presente ley, así como la conservación y restauración de las edificaciones del antiguo presidio de la Isla San Lucas. Las dependencias de la Administración pública y del sector privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la isla. Sin embargo, la actividad turística habilitada por la Ley N.° 9892 no es ecoturismo, particularmente no es la actividad turística que se considera conciliable con la categoría de manejo de un parque nacional.Ya se ha explicado en este informe que el ecoturismo es una actividad, o conjunto de actividades, orientadas a mantener un ambiente natural, con énfasis en sus rasgos biológicos, físicos y culturales, mediante un proceso controlado que garantice el mínimo impacto ambiental que, además, debe ser ecológicamente sostenible. Involucra actividades turísticas de bajo impacto, es localmente beneficioso y satisfactorio para los visitantes. Inherente al concepto de ecoturismo permitido en los Parques Nacionales es la prescripción, prevista en el artículo 12 de la Ley de Parques Nacionales, que establece que en un Parque Nacional no pueden otorgarse concesiones para la explotación de productos de los parques nacionales, ni otorgarse permiso para establecer instalaciones distintas a las del Servicio Nacional de Parques Nacionales. Ley N.° 9892 tiene por objetivo, más bien, un desarrollo turístico de la Isla San Lucas orientado a un énfasis en lo económico y en la conceptualización, mercadeo y promoción de la isla como atracción turística.Para tal efecto, la Ley N.° 9892 pretende que un Plan Maestro establezca el modelo para el desarrollo turístico sistemático de la Isla. Plan Maestro que no está sometido a la aprobación de la Secretaría Técnica Nacional Ambiental. La Ley 9892 le otorga a la Junta Directiva del Parque Nacional Isla San Lucas atribuciones para definir las actividades turísticas sostenibles que incentiven la atracción turística y la visitación de la isla. Estas actividades comprenden las comerciales, las de transporte, las deportivas, artísticas y culturales que incentiven la atracción turística y la visitación a la isla. Además, la Ley le otorga a la Junta Directiva la posibilidad de celebrar convenios para la prestación de servicios comerciales en la isla. Se transcribe el artículo 9: ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones: a) Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque. b) Contribuir con la protección y conservación ambiental del parque nacional. c) Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos. d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla. e) Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país. f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura. g) Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes. h) Aprobar la estructura administrativa que se requiera para la gestión institucional del parque. i) Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra. j) Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro. e) Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país. f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura. g) Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes. h) Aprobar la estructura administrativa que se requiera para la gestión institucional del parque. i) Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra. j) Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro. telecomunicaciones, higiene y saneamiento, muelles, atracaderos, servicios de alimentación y vías de acceso, información y comunicación en diversos formatos, así como la que estime pertinente para el provecho de los visitantes y asegurar el disfrute y apreciación de la riqueza histórica, arquitectónica y natural del parque.En la construcción de muelles, atracaderos y demás facilidades marítimas, el Instituto Costarricense de Puertos del Pacífico (lncop), el Ministerio de Obras Públicas y Transportes (MOPT) y el Instituto Costarricense de Turismo (ICT) suplirán el soporte técnico correspondiente a la Junta Directiva; asimismo, se faculta a estas instituciones para que construyan y den mantenimiento a las obras indicadas en esta norma. Luego, es claro que las actividades turísticas habilitadas por la Ley N.° 9892 no se concilian con el concepto de ecoturismo, pues suponen una orientación más bien económica, prevén el desarrollo de una infraestructura que no se constriñe a la estrictamente necesaria para atender las necesidades básicas de los visitantes, sino que supone la edificación de un complejo de servicios comerciales, de transporte, de alimentación y servicios en la isla - excluyendo hoteles y casinos -.Además, debe indicarse que el desarrollo infraestructural que prevé la Ley N.° 9892 no necesariamente debe sujetarse a los criterios técnicos de sustentabilidad. Tal y como se ha explicado, la gestión y desarrollo de la denominada Zona Turística, conforme la Ley impugnada, debe responder a criterios diferenciados del resto del Parque Nacional. De seguido, cabe advertir que la declaratoria de interés nacional y alta prioridad de desarrollo turístico de la Isla San Lucas, prevista en el artículo 2 de la Ley N.° 9892, es incompatible con lo indicado en el voto de la Sala Constitucional N.° 13099-2010 en el sentido de que la declaratoria de interés turístico que recaiga sobre un área silvestre protegida, debe circunscribirse a las funciones de conservación, protección y mejoramiento de su entorno. Además, debe sujetarse al principio de objetivación de tutela de ambiental. Se transcribe, de nuevo, el artículo 2 en comentario: ARTÍCULO 2- Interés nacional.Se declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos de la presente ley, así como la conservación y restauración de las edificaciones del antiguo presidio de la Isla San Lucas. Las dependencias de la Administración pública y del sector privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la isla. Es evidente que la declaratoria del artículo 2 no se concilia con una filosofía del desarrollo sostenible que busque controlar las repercusiones que pueda generar en el ambiente la actividad turística en la Isla San Lucas. Debe pues insistirse, en que a pesar de que Ley N.° 9892 ha establecido que la Isla San Lucas sea un parque nacional – que debería ofrecer un mayor nivel protección a los recursos naturales, culturales e históricos de la Isla San Lucas -, lo cierto es que la Ley N.° 9892 disminuye el nivel protección de la isla.Comparado con el régimen de tutela que tenía la isla San Lucas al amparo del Decreto Ejecutivo N.° 34282 – que declaraba la Isla como un Refugio Nacional de Vida Silvestre – el régimen de protección que ofrece la Ley impugnada es mucho menor. Esto a pesar de que la Ley N.° 9892 crea un Parque Nacional. Además, ha de tomarse en cuenta que sea como refugio de vida silvestre o como parque nacional, la Isla es un área silvestre protegida y, en ese tanto, parte del patrimonio nacional del Estado, según lo establecido en el artículo 13 de la Ley Forestal. Esto significa que, de conformidad con lo que establece el artículo 18 de esa misma ley, las únicas actividades permitidas deberían ser la investigación, la capacitación y el ecoturismo. Sin embargo, como hemos explicado, la ley impugnada, al crear una zona turística para el desarrollo del turismo sostenible, permite la realización de actividades distintas a aquellas propias del ecoturismo.Esto constituye, a nuestro modo de ver, una disminución del nivel de tutela ambiental en el tanto implica la posibilidad de ampliar la gama de actividades eventualmente permitidas. Ahora bien, en sí mismo esto no es inconstitucional si está técnica y científicamente justificado que dicha ampliación no conlleva una afectación al ambiente, y que no comprometa los fines de conservación de los ecosistemas que la categoría de manejo supone, tal y como lo ha señalado este Tribunal Constitucional en su jurisprudencia al derivar del artículo 50 constitucional los principios de no regresión y objetivación de la tutela ambiental. En el sentido anterior, cabe puntualizar que en el expediente legislativo no se han incorporado estudios técnicos que justifiquen la posibilidad de crear la denominada Zona Turística, la afectación de una porción de la isla al desarrollo turístico ni la posibilidad de desarrollar nueva infraestructura en la isla que no sea la estrictamente necesaria para los visitantes y el personal.Lo cierto es que, bajo la Ley N.° 9892 una porción significativa de la Isla ha sido afectada a un fin distinto de la tutela ambiental, sea la promoción del desarrollo turístico sostenible -, además la Ley N.° 9892 permite el otorgamiento de concesiones distintas a las necesarias para el servicio de parques, y además permite el desarrollo de una infraestructura que faculte la edificación de un complejo de servicios comerciales, de transporte, de alimentación y servicios en la isla - excluyendo hoteles y casinos – que no se concilia con el concepto de tutela de ambiental de un parque nacional. En todo caso, se impone remarcar que el modelo de gobernanza de la Isla, creado por la Ley, N.° 9892 tiene por finalidad prioritaria el desarrollo turístico de la Isla. El artículo 4 de esa Ley dispone que, aparte de la preservación del patrimonio, las autoridades deben coadyuvar al desarrollo socioeconómico del Golfo de Nicoya, fomentar el turismo sostenible e inclusivo, para la atención de (sic) visitantes nacionales y extranjeros, y garantizar el disfrute, la recreación, la generación de facilidades y comodidades para la visitación turística inclusiva.Además, las atribuciones de la Junta Directiva tienen por función principal, el desarrollo de la infraestructura turística en la Isla y la promoción y mercadeo de la Isla como un destino de atracción turística. Todo esto, por supuesto, disminuye también el nivel de protección y tutela ambiental de la Isla San Lucas. Ciertamente no se encuentra que la Ley prevea que el eventual fideicomiso contrate seguridad privada sea, per se, inconstitucional, pero sí sería inconstitucional que se prevea la utilización del fideicomiso para el desarrollo turístico de un área silvestre protegida, desarrollo que por su impacto supondría una disminución en el nivel de tutela ambiental. Así las cosas, se considera que la Ley N.° 9892 violenta el numeral 50 constitucional por quebranto de los principios de progresividad y no regresión en materia ambiental y de objetivación de la tutela ambiental. Esto en el tanto, la Ley N. 9892 supone la adopción de una norma que disminuye, sin justificación razonable y proporcionada, la tutela ambiental de la Isla San Lucas; y desmejora, entonces, la garantía a un medio ambiente sano y ecológicamente equilibrado.Además, supone una violación del principio de objetivación de la tutela ambiental, en el tanto la Ley N.° 9892 no se fundamenta en criterios técnicos, objetivos y verificables. Sobre estos principios conviene citar las siguientes sentencias de la Sala Constitucional: V. Sobre los principios de progresividad y no regresión de la protección ambiental. El principio de progresividad de los derechos humanos ha sido reconocido por el Derecho Internacional de los Derechos Humanos; entre otros instrumentos internacionales, se encuentra recogido en los artículos 2 del Pacto Internacional de Derechos Económicos Sociales y Culturales, artículo 1 y 26 de la Convención Americana sobre Derechos Humanos y artículo 1 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales. Al amparo de los estas normas, el Estado asume la obligación de ir aumentando, en la medida de sus posibilidades y desarrollo, los niveles de protección de los derechos humanos, de especial consideración aquellos, que como el derecho al ambiente (art. 11 del Protocolo), requieren de múltiples acciones positivas del Estado para su protección y pleno goce por todos sus titulares.Del principio de progresividad de los derechos humanos y del principio de irretroactividad de las normas en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas, recogido en el numeral 34 de la Carta Magna, se deriva el principio de no regresividad o de irreversibilidad de los beneficios o protección alcanzada. El principio se erige como garantía sustantiva de los derechos, en este caso, del derecho a un ambiente sano y ecológicamente equilibrado, en virtud del cual el Estado se ve obligado a no adoptar medidas, políticas, ni aprobar normas jurídicas que empeoren, sin justificación razonable y proporcionada, la situación de los derechos alcanzada hasta entonces. Este principio no supone una irreversibilidad absoluta pues todos los Estados viven situaciones nacionales, de naturaleza económica, política, social o por causa de la naturaleza, que impactan negativamente en los logros alcanzados hasta entonces y obliga a replantearse a la baja el nuevo nivel de protección.En esos casos, el Derecho a la Constitución y los principios bajo examen obligan a justificar, a la luz de los parámetros constitucionales de razonabilidad y proporcionalidad, la reducción de los niveles de protección. (Voto N.° 5994-2017 de las 11 horas del 26 de abril de dos mil diecisiete) IX.- Sobre el principio de objetivación de la tutela ambiental. Este principio refiere la necesidad que toda protección que se brinde al derecho a un ambiente sano y ecológicamente equilibrado, así como la regulación concerniente, se encuentre sustentada en criterios técnicos, objetivos y verificables. De conformidad con lo indicado, la normativa aplicable prevé que un cambio respecto de la condición de las nacientes, deba necesariamente estar documentado y acreditado de manera técnica, pues precisamente se trata de situaciones verificables a través de las ya mencionadas reglas unívocas de la ciencia y de la técnica, lo cual permite, a su vez, el control de las decisiones que al respecto adopte la administración.Se ha referido y citado jurisprudencia de esta misma Sala en ese sentido –sentencias 2004-1923 y 2017-11803-, y bajo ese criterio, que implica que toda modificación sobre este aspecto deba documentarse y sustentarse técnicamente, se descarta que la palabra «permanentes», y cualquier cambio en cuanto a la tipología de la naciente para considerarla ya no como permanente, sino como intermitente, implique de suyo una afectación al principio de objetivación de la tutela ambiental. Por el contrario, el deber de sustentar técnicamente estas variaciones, cumple con respetar plenamente este principio. Por tal razón, la presunta afectación de este principio igualmente debe descartarse. (Voto N.° 9221-2019 de las 11:41 horas del 22 de mayo de 2019) Finalmente, debe notarse que la Ley N.° 9892 dispone en el artículo 3 que el área marina costera está compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros.Esto supone una disminución, no justificada en criterios técnicos, del área del área silvestre protegida, pues bajo el Decreto Ejecutivo de creación del Refugio de Vida Silvestre, artículo 3 del Decreto N.° 29277 de 11 de enero de 2001, el área de protección se extendía por la parte marítima hasta una profundidad de 6 metros. Sobre el tema de la disminución de las áreas silvestres, particularmente referida a San Lucas, puede citarse otra vez la sentencia de la Sala Constitucional 13099-2010: Los argumentos en las tres acciones de inconstitucionalidad acumuladas tienen como común denominador la aludida infracción al artículo 50 constitucional, por la inobservancia del artículo 38 de la Ley Orgánica del Ambiente. Para declarar la inconstitucionalidad basta comprobar que fue incumplido el mandato establecido en este último numeral, al modificar la cabida del área silvestre protegida. El numeral 38 indica que: “La superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiear (sic) sea su categoría de manejo, sólo (sic) podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”.De ahí que el Poder Ejecutivo no puede reducir éstas (sic) áreas sin observar el procedimiento legislativo y técnico, razón por la cual, la Sala declara parcialmente con lugar la demanda para anular el artículo 1° únicamente en cuanto excluye del área protegida del Refugio Nacional de Vida Silvestre Isla San Lucas, el “5.5% del área actual para la protección del patrimonio cultural”, lo anterior por infracción a lo dispuesto por los artículos 11, 50 y 89 constitucionales, y no en cuanto a la adición del sector marino e islotes, toda vez que ello es permitido al Poder Ejecutivo acordarlo mediante Decreto Ejecutivo. V CONCLUSION Con conclusión, este Órgano Asesor considera que la Ley N.° 9892 de 24 de agosto de 2020 tiene vicios de inconstitucionalidad”.
137. 138Por escrito incorporado al expediente digital el 26 de abril de 2021, se apersona Sylvie Durán Salvatierra, en su condición de ministra de Cultura y Juventud. Refiere que: “Es criterio de esta Jerarca Institucional que la acción de inconstitucionalidad interpuesta y sus principales fundamentos requieren de un criterio técnico especializado para ser respondido, criterio del cual carece esta Cartera Ministerial, al tratarse de temas vinculados estrictamente con conservación de áreas silvestres protegidas en la Isla San Lucas, competencia legal de otros Ministerios del Poder Ejecutivo. No obstante lo anterior, resulta necesario mencionar varios aspectos de interés en la acción interpuesta, como lo son: tal y como se transcribió anteriormente, la Ley cuestionada hace mención al Ministerio de Cultura y Juventud en sus artículos 5, 9 y 10. En el caso del artículo 5 vemos que la Ley acusada de inconstitucional declara como patrimonio histórico arquitectónico el conjunto de edificaciones del antiguo presidio San Lucas, imponiéndole el deber a esta Cartera Ministerial de realizar un inventario del citado patrimonio y su estado de conservación.Además, el último párrafo del artículo 9 de la ley cuestionada, dispone que en materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y Juventud. No obstante, lo anteriormente expuesto, resulta que la Ley 7555 de Patrimonio Histórico Arquitectónico de Costa Rica del 27 de setiembre de 1995, en su artículo 3 dispone lo siguiente: “Artículo 3. El Estado tiene el deber de conservar el patrimonio histórico arquitectónico del país. El Ministerio de Cultura, Juventud y Deportes es la máxima autoridad en la materia y brindará la asesoría necesaria a los propietarios, poseedores o titulares de derechos reales sobre los bienes que forman ese patrimonio, para que se cumplan los fines de la presente ley”. Visto lo anterior, resulta entonces que desde la promulgación de la ley 7555 le corresponde a esta Cartera Ministerial velar por la conservación del patrimonio histórico-arquitectónico, para lo que estableció una unidad administrativa especializada, denominada Centro de Investigación y Conservación del Patrimonio Cultural.Así las cosas, las obligaciones que impone la Ley ahora cuestionada, son de seguimiento y acatamiento de este Centro, con instrucción clara de la propia Ley 7555 y de este Despacho Ministerial. En este orden de ideas, podemos verificar que dentro de las pretensiones de los accionantes no se desprenden o acusan acciones que encuentren relación con esta Cartera Ministerial, escapando de su competencia rendir un informe sobre los aspectos acusados de inconstitucionales en la ley 9892. Ahora bien y como referencia para este respetable Tribunal Constitucional, resulta de interés traer a colación el Voto 2010-015388 de las siete horas cincuenta y dos minutos del veintiséis de marzo de dos mil diez de la Sala IV de la Corte Suprema de Justicia, que en lo que interesa, dispuso lo siguiente: (…) Lo anterior pone en evidencia, que un espacio con valores excepcionales de varia naturaleza (ambientales, turísticos, culturales) puede perfectamente existir y generar una gestión compartida de las Carteras Ministeriales involucradas.En el caso de ejemplo, la locación denominada, Antigua Zona Americana de Quepos, contaba con declaratoria de patrimonio natural del Estado, a partir del Decreto Ejecutivo No. 35325-MP-MINAET (sic) de junio de 2009, al momento en que esta Cartera Ministerial promovió la declaratoria de las edificaciones del lugar como Patrimonio Histórico-Arquitectónico del país (en tanto son excepcionales casas bananeras de principios del siglo XX). Así las cosas, y luego de efectuar el procedimiento administrativo correspondiente, mediante Decreto Ejecutivo Nº 37329-C, publicado en el Alcance N° 153 a La Gaceta N° 198 del 12 de octubre del 2012 , el Estado concretó la declaratoria del área como Patrimonio Histórico-Arquitectónico de Costa Rica, confirmando de esta forma, la posible existencia armoniosa de dos tipos de declaratorias patrimoniales (cultural y natural) en favor de la colectividad y cuya gestión ejerce en el ámbito de su competencia, la instancia respectiva del Poder Ejecutivo.Ergo, se concluye que, en lo que a esta Cartera Ministerial atañe, la declaratoria patrimonial de valor cultural (histórico-arquitectónica) puede coexistir con otras de naturaleza turística y/o ambiental, en donde cada Ministerio deberá atender y cumplir con sus propias obligaciones derivadas del marco legal especialísimo que le cubra”.
138. 139Por escrito incorporado al expediente digital el 26 de abril de 2021, Francisco San Lee Campos, cédula de identidad 107500349, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
139. 140Por escrito incorporado al expediente digital el 26 de abril de 2021, se apersona Eduardo Newton Cruickshank Smith, en su condición de presidente de la Asamblea Legislativa. Indica que: “I. ANTECEDENTES Tramitación de la Ley 9892. De seguido se detallan aspectos de trámite de la Ley 9892: La Ley 9892, "Creación del Parque Nacional Isla San Lucas" se discutió con el número de expediente legislativo N° 21287. El texto base del proyecto fue publicado en el Alcance 102, Gaceta 84 del 08 de mayo de 2019. En fecha 06 de marzo del 2019, el proyecto de ley fue asignado a la Comisión Permanente Especial de Turismo para el dictamen correspondiente (Ver folio 28). Consultas a instituciones y sus respectivas respuestas: En folio 59 consta oficio AL-DESTCO-068-201 9 del Departamento de Servicios Técnicos, sobre Informe de Consultas Obligatorias conforme al artículo 126 del Reglamento de la Asamblea Legislativa al Proyecto de Ley 21 .287: -Comisión Nacional de Patrimonio Histórico y Arquitectónico, la respuesta institucional consta de folio 159 a 161. -Comisión Nacional de División Territorial Administrativa. -Instituto Geográfico Nacional, respuesta institucional visible de folio 119 al 123. -Instituto Costarricense de Turismo, respuesta de la Gerencia General visible al folio 106 al 116.ICT envía una adición a su respuesta ver folio 201 a 203 Respuesta Municipalidad de Puntarenas Folio 21 3 a 227 -Instituto de Acueductos y Alcantarillados, respuesta visible de folios 196 a 199. Tomo 2. -Instituto Costarricense de Electricidad. -Instituto Costarricense de Puertos del Pacifico, respuesta institucional que consta de folios 101 aI1 04. (folio 52) Se aprueba moción de consultas en acta No. 1 de 6 de junio de 2019, ver folio 59, en la moción de consulta se incluyó, además, al Sistema de Áreas de Conservación, ver folio 154. Se aprueba moción para consultar el Expediente a las siguientes instituciones: Comisión Nacional de División Territorial Administrativa, Comisión Nacional de Patrimonio Histórico y Arquitectónico, Instituto Geográfico Nacional, Instituto Costarricense de Turismo, Municipalidad del Cantón Central de Puntarenas, Instituto Costarricense de Acueducto y Alcantarillados, Instituto Costarricense de Electricidad, Instituto Costarricense de Puertos del Pacífico y Sistema Nacional de Áreas de Conservación.(Folios 58 al 61). Del folio 63 al 100 constan notas de consulta a las instituciones y recibido de esas notas por parte de las instituciones. En la Sesión Ordinaria N°9 del 10 de octubre de 2019, folio 251, se aprobó mediante moción de orden llamar a audiencia al Concejo Municipal de la Municipalidad de Puntarenas, así como consultar el expediente al MINAE y a la Procuraduría General de la República 252, 256 y 268 a 271. Consta respuesta del Minae en folios 272 al 273. Se consulta a Cámara nacional de turismo comunitario (CANTURURAL) y Cámara Nacional de Ecoturismo. Informe Jurídico del Departamento de Servicios Técnicos AL -DEST-IJU-006-2020 de 21 de enero de 2020 consta en folios 290 a 311) En la Sesión Ordinaria N°1 de fecha 06 de junio de 2019, el expediente fue asignado a Subcomisión para su respectivo estudio, folio 60, una vez que se venció el plazo, se volvió a integrar la subcomisión, se dio prorroga la (sic) plazo para informe de subcomisión.No consta que se entregara informe de subcomisión. Dictamen de Comisión En sesión extraordinaria número 15 del 22 de enero de 2020 se somete a votación por el fondo, dado que vencía el plazo otorgado y ampliado por la Comisión para dictaminar el proyecto, conforme al artículo 80 del Reglamento de la Asamblea Legislativa. El proyecto es aprobado por unanimidad. En fecha 29 de enero del 2020, la Comisión Permanente Especial de Turismo entrega a la Secretaría del Directorio, el Expediente con el Dictamen Unánime Afirmativo (Visible a folios del 312 al 324). Primer Debate: En la Sesión Plenaria Extraordinaria Número 37 del 10 de agosto del año 2020, con cuarenta y cinco votos a favor y uno en contra, el expediente se aprobó en su trámite de Primer Debate. (Visible a folio 855). Primer Informe de Mociones 137, 20 mociones aprobadas y 28 rechazadas (Ver folios de 347 a 353). Segundo informe de mociones 137, 12 mociones aprobadas y 34 rechazadas (Ver informe en folios de 563 a 570).Mociones 137 de folio 354 a 409. Moción de Dispensa de lectura 410 y revisiones de folios 411 a 458. Segundo Debate En la Sesión Plenaria Extraordinaria Número 39 del 13 de agosto del año 2020, con treinta y nueve votos a favor y cero en contra, el expediente fue aprobado en Segundo Debate. (Visible a folio 928). II. SOBRE LOS CUESTIONAMIENTOS DE INCONSTITUCIONALIDAD Antes de dar respuesta a cada uno de los cuestionamientos es necesario que la Sala Constitucional considere los aspectos jurídicos y fácticos relevantes que a continuación se esbozan sobre el origen, evolución y situación de la Isla San Lucas, aspectos que fueron analizados por los legisladores mediante antecedentes históricos, normativos, jurisprudenciales, respuestas de consultas a instituciones especializadas y descripción de hechos sucedidos en esa Isla, así como, la discusión de textos, mociones, estudios e informes, toda documentación que consta en cinco tomos del expediente legislativo de aproximadamente 250 folios cada tomo.Información que fundamenta la ley 9892 Ley de Creación del Parque Nacional Isla San Lucas. Se inicia con aspectos relevantes del régimen jurídico de la Isla San Lucas, en primer lugar se cita la Ley 5469 Ley de traspaso de la Isla San Lucas a la Municipalidad de Puntarenas. El legislador al promulgar la ley número 5469 del 25 de abril de 1974, dispuso traspasar la propiedad de la Isla a la Municipalidad de Puntarenas. El propósito fue poner a San Lucas bajo administración municipal a fin de que ésta (sic) la utilice como un centro turístico, para lo cual se le asignaba al Instituto Costarricense de Turismo (ICT) la elaboración del planeamiento del Desarrollo Turístico correspondiente. Por su parte, la ley sobre la zona marítimo-terrestre, dispuso que "la isla de San Lucas conservará su situación jurídica actual bajo la administración de la Municipalidad de Puntarenas" (artículo 78). Precisamente, la Ley 9892 deroga los artículos 2 al 8 de esa Ley 5469.Estando vigente la ley en mención -y por ende también, las facultades de administración por parte de la Municipalidad- el Poder Ejecutivo emite el decreto número 29277-MINAE (del 11 de enero de 2001) en el que declara Refugio Nacional de Vida Silvestre (RNVS-ISL) ". una porción terrestre conformada por la Isla San Lucas, ubicada en el Golfo de Nicoya, Hoja cartográfica del IGN denominada Golfo, Edición 3-IGNCR en la Latitud Norte 9° 56' y Longitud Oeste 84° 54. 5' con una extensión de 4,62 km. Cuadrados y el área marino costero, compuesta por las aguas alrededor de la isla con una profundidad de hasta 6 metros" (artículo1°), y transfiere la administración de la Isla, al Ministerio del Ambiente y Energía (MINAE). Aunado a lo anterior, la Sala Constitucional conoció la acción de inconstitucionalidad No. 03-006587-0007-CO interpuesta por el Alcaide de la Municipalidad de Puntarenas contra el Decreto Ejecutivo No. 29277-MINAE, de once de enero de 2001, donde alegó el quebrantamiento a dos principios: el de autonomía municipal y el desconocimiento vía reglamentaria de una ley de la República.Las infracciones acusadas fueron desestimadas por la Sala mediante la sentencia 2004-08928 de las dieciséis horas con treinta y siete minutos del dieciocho de agosto de dos mil cuatro. La Sala indicó que con la promulgación de la Ley Orgánica del Ambiente, Ley 7554 del 4 de octubre de 1995, se otorgó al Poder Ejecutivo la competencia de establecer o delimitar las áreas silvestre (sic) protegidas, situación que la jurisprudencia de la Sala consideró constitucional. Otro antecedente relevante, es que la Isla San Lucas fue considerada como sitio de interés histórico por Decreto 24520-C en el año 1995. Posteriormente, el Ministerio de Cultura, mediante el Decreto Ejecutivo No. 30714-C del 26 de septiembre de 2002, declaró e incorporó la Isla al Patrimonio Histórico Arquitectónico de Costa Rica. AI respecto la Sala Constitucional señaló: (…) En el año 2008, el Decreto 34282 TUR-MINAET-C (sic) de 25 de enero de 2008, rectifica, delimita y amplia los límites del Refugio de Vida Silvestre.Este decreto fue objeto de una acción de inconstitucionalidad que fue declarada parcialmente con lugar mediante resolución No. 13099-2010 de 4 de agosto de 2010. La Sala en esa resolución esbozo y delineó un marco de referencia constitucional relativo a la regulación de la Isla San Lucas. Por lo que consideramos relevante señalar que en la ley 9892 se retoman algunos aspectos del Decreto 34282 TUR-MINAET-C (sic) de 25 de enero de 2008, pero sobre todo tener en cuenta que el diseño de la ley 9892 buscó concordar con lo dispuesto en la sentencia 13099-2010 la Sala Constitucional, ya que en buena medida lo señalado por este Tribunal justifica y fundamenta la propuesta que plantea la ley en función de los bienes y derechos jurídicos que se involucran y que deben garantizarse en una adecuada regulación de la Isla San Lucas. La Sala en esa resolución señaló: (…) La Ley 9892 propone una regulación armoniosa y equilibrada de la Isla San Lucas donde considera varios temas de relevancia constitucional y de los convenios e instrumentos internacionales como lo son el derecho fundamental al ambiente sano y ecológicamente equilibrado, y la tutela al Patrimonio Nacional y Cultural y lo relativo al Turismo sostenible.AI respecto la Sala Constitucional señaló (…) En el marco del panorama constitucional planteado, de seguido esta Presidencia se referirá a cada uno de los aspectos cuestionados: 1.- Sobre la alegada reducción del área silvestre protegida sin ninguna justificación Los accionantes cuestionan la ley sobre premisas equivocas, por lo que se expondrán las razones que comprueban que la Ley 9892 no presenta inconstitucionalidad alguna, y no afecta ningún derecho fundamental o principio constitucional, y no se violentan o contradicen normas constitucionales como el artículo 7, 50 y 89 de la Constitución Política como indebidamente lo apuntan los accionantes. Tampoco, la ley 9892 contraviene convenios, tratados o instrumentos internacionales y no afecta en forma negativa ningún derecho humano, y no es cierto que la ley afecte los convenios que señalan los accionantes como la Convención sobre Conservación de Humedales de importancia internacional y sitios de Aves Migratorias (RANSAR), el Convenio para la Conservación de la Biodiversidad y Protección de Áreas silvestres prioritarias para América Central, el Convenio sobre la Diversidad Biológica, y el Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, sociales y culturales, Protocolo de San Salvador.Tampoco la ley afecta la Convención para la protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, Ley 3763, ni se viola ningún artículo de la Convención Americana de Derechos Humanos. No es cierto, como afirman los accionantes, que se ha afectado el principio de irreductibilidad de las áreas silvestres protegidas. Todo lo contrario, la ley 9892, procura el cumplimiento de compromisos internacionales en materia de derechos humanos y en materia de derecho ambiental, así como, asegurar el derecho de todos a un ambiente sano y ecológicamente equilibrado. No llevan razón los accionantes al alegar que la ley 9892 redujo el área silvestre Refugio de Vida Silvestre Isla San Lucas, lo que la Ley 9892 hizo fue crear el Parque Nacional Isla San Lucas en gran parte del área del Refugio de Vida silvestre Isla San Lucas, pero no redujo área alguna. Debe quedar claro que no se da en la ley 9892, ningún tipo de reducción al Refugio de Vida Silvestre Isla San Lucas, este no se reduce, ni se elimina, lo que se hace es crear mediante ley un parque nacional que es una categoría con mayor protección y en unas áreas específicas se señalan connotaciones especiales debidamente fundamentadas en el expediente legislativo.La ley 9892 crea y delimita el Parque Nacional Isla San Lucas integrado por una porción terrestre y un área marina costera y determina que inserto en las dos áreas existirá un espacio denominado Zona turística dedicada a la actividad turística sostenible y la promoción y desarrollo de los sititos de interés histórico, arquitectónico y ambiental y además, la ley señala que este espacio tendrá un manejo diferenciado. Se trata entonces de una ley especial, dada la conjunción de características y elementos que involucra y que contrario a lo que alegan los accionantes, tiene como fin la preservación del patrimonio natural, histórico, cultural, arqueológico, arquitectónico y ambiental. Cabe señalar que la Sala Constitucional anuló el Decreto 34282 TUR-MINAET-C (sic) de 25 de enero de 2008, pero dejó a salvo el área comprendida por aguas alrededor de la Isla San Lucas hasta una profundidad de 6 metros, la ampliación que opero fue reconocida por la Sala Constitucional como válida, como una potestad del Poder Ejecutivo.Es de suma importancia hacer ver que esa medida no ha sido cambiada por la ley 9892. Si bien el Parque Nacional que se crea abarca una gran parte del Refugio, quedan espacios que continúan como área silvestre protegida. Más bien, lo que la ley hace es dar a una gran parte de la Isla o más bien el refugio, una categoría de mayor protección. Por lo que se solicita al Tribunal constitucional desestimar ese alegato por infundado. 2. Sobre el alegado cambio de categoría de manejo y la inclusión de una zona turística sin estudios De nuevo los accionantes parten de premisas equivocadas, por lo que se solicita al Tribunal constitucional analizar este punto considerando que los señores legisladores tuvieron acceso no solo al expediente legislativo y los documentos contenidos en él, sino a todos los antecedentes de la Isla San Lucas, que están a su alcance, y que fueron estudiados de forma objetiva, para fundamentar la creación del Parque Nacional y la zona turística.Ley Orgánica del Ambiente señala que para la reducción de la superficie de las áreas protegidas, debe cumplir con dos requisitos: que sea efectuado mediante Ley de la República y segundo que sea justificada mediante estudios técnicos. No obstante, de nuevo se recuerda que la ley 9892 Ley de Creación el Parque Nacional Isla San Lucas, no hace reducción alguna del área silvestre protegida. En todo caso, la Asamblea Legislativa, aprobó esta ley, luego de una valiosa discusión que dio como resultado ajustes a los textos para ser mejorados. Finalmente, se aprobó con una mayoría de legisladores con la convicción de que la creación del Parque Nacional Isla San Lucas es constitucional, porque esta ley se perfilo siguiendo derroteros marcados la sentencia del año 2010 que se ha citado, de la Sala Constitucional. Asimismo, el legislador consideró que esa ley viene a garantizar una mejor protección ambiental a la Isla San Lucas.Según se desprende de la información que consta en el expediente la creación del Parque tiene también, su fundamento y asidero en la importancia de preservar y dar a conocer el patrimonio histórico, arquitectónico arqueológico, que existe en la Isla San Lucas y hacer una necesaria puesta en valor de los bienes que son patrimonio cultural e histórico. Se consideró además, que la Sala Constitucional realizó una vista en la Isla San Lucas para lo resuelto en el año 2010, pudo hacer constar la situación de la Isla San Lucas, asimismo, reconoce la necesidad de hacer una "puesta en valor" del patrimonio cultural, pero como bien lo señala el patrimonio cultural es para que, en la medida que su conservación lo permita, sea de conocimiento tanto de nacionales y extranjeros y pueda ser apreciado por las generaciones actuales y futuras así, el Parque Isla San Lucas que se crea en esta ley, viene a hacer una puesta en valor del patrimonio histórico cultural y de los espacios de la Isla que pueden ser apreciados por los visitantes mediante un turismo sostenible, y todo unido a la protección del ambiente.Al respecto del concepto de "puesta en valor" de la Isla San Lucas la Sala Constitucional señaló (…) "VII.- Sobre la protección al patrimonio cultural. -inminente desaparición" C.- DE LA TUTELA CONSTITUCIONAL AL PATRIMONIO CULTURAL. ARTÍCULOS 50 Y 89 DE LA CONSTITUCIÓN POLÍTICA. XVI.- DELIMITACIÓN DEL ÁMBITO DE APLICACIÓN Y SUSTENTO JURÍDICO-CONSTITUCIONAL. La importancia de la protección del patrimonio cultural, a nivel nacional, regional e internacional no tiene discusión, En el reconocimiento judicial del 4 de junio de 2010, este Tribunal Constitucional, así como las partes y los coadyuvantes apersonados al proceso, constatamos la visible falta de mantenimiento de los edificios ubicados en la Isla San Lucas por el paso de los lustros y la necesidad de tomar acciones para detener el deterioro avanzado que ha sufrido la infraestructura que ahí existe (y las estructuras en madera que existieron en el lugar), y la imperiosa necesidad de detener su desaparición.Por otra parte, el testimonio histórico de sitios arqueológicos de culturas que vivieron en la isla, y cuya protección se adeuda no solo a propósito de la función histórica que se le había asignado como centro penitenciario. "...La declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible...deberá entenderse constitucional mientras que la conservación y restauración de las edificaciones del antiguo penal y aquellas que fueron construidas con ocasión de su existencia, queden circunscritas a las labores de conservación, protección y mejoramiento de su entorno. Lo mismo debe ocurrir con los sitios arqueológicos y el cementerio ubicado en Playa Cocos, (...). En cuanto a la infraestructura destinada para el uso del turista, ésta (sic) deberá estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos y a esta (sic), las instalaciones que se deberán construir serán las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico.(...) Reconoce este Tribunal que se trata de un verdadero reto lograr la conservación y recuperación de las edificaciones de la Isla, así como su puesta en valor, incluidas -por ejemplo las casas de madera ubicadas en el lugar conocido como "Las Jachas" y sus alrededores, la Enfermería, la Capilla, Edificio de Administración, y otra infraestructura necesaria para ofrecer servicios limitados del turismo de naturaleza v el eco-turismo, entre tanto, se responda a criterios de sustentabilidad, de lo contrario, conllevaría un roce de relevancia constitucional de los artículos 50 y 89. La necesidad de hacer una puesta en valor de los bienes inmersos en la Isla San Lucas es la principal razón por la que se crea el Parque Nacional Isla San Lucas es por esa razón que se declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla, así como la conservación y restauración de las edificaciones del antiguo presidio de la Isla San Lucas.Se delimita el Parque Nacional Isla San Lucas en su porción terrestre y en el área marina costera. Deben tenerse presente que como fines del parque están la preservación del patrimonio natural, histórico, cultural, arqueológico y arquitectónico, y muy importante, el ayudar al desarrollo socioeconómico del Golfo de Nicoya y el fomento del turismo sostenible e inclusivo, para la atención de (sic) visitantes nacionales y extranjeros, así como el disfrute, la recreación, la generación de facilidades y comodidades para la visitación turística inclusiva. Además, no debe dejarse de lado que la Ley señala que la Administración de la Isla está a cargo del Ministerio de Ambiente y Energía (Minae) y que el Ministerio de Cultura lo que hará es reportar el inventario de los bienes históricos, culturales, arqueológicos y arquitectónicos al Minae. Además, la Zona turística está delimitada en la ley incluye las edificaciones del antiguo presidio San Lucas, el muelle, la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se precisan.Asimismo, deben considerarse que la ley señala que el parque se regirá por un Plan Maestro con base en criterios técnicos. Y lo más importante, es que la ley señala que cualquier conflicto de competencias será dirimido el Ministerio de Ambiente que en todo caso tiene dentro de sus funciones formular, planificar y ejecutar las políticas de recursos naturales de protección ambiental y además, la Ley Forestal, Ley No. 7575, establece como función esencial y prioritaria del Estado, velar por la conservación, protección y de los bosques naturales, por lo tanto, se prohíbe la corta o el aprovechamiento de los bosques en parques nacionales, reservas biológicas, manglares, zonas protectoras, refugios de vida silvestre y reservas forestales propiedad del Estado. Por su parte, el Instituto Costarricense de Turismo (ICT), tiene la función de proteger y dar a conocer construcciones o sitios de interés histórico, así como lugares de belleza natural o de importancia científica, conservándolos intactos y preservando en su propio ambiente la flora y la fauna autóctonas.En conclusión se rechazan las inconstitucionalidades indicadas en este punto por los accionantes porque los estudios técnicos son obligatorios en caso de que se dé una disminución de áreas silvestres protegidas o porque haya que demostrar que no hay una afectación al ambiente, pero en el caso de la ley 9892, se da una protección mayor al derecho fundamental al ambiente sano y ecológicamente equilibrado, y a la misma vez, se tutela al Patrimonio Nacional y Cultural. En todo caso la categoría de Parque Nacional se fundamenta en la documentación que consta en el expediente legislativo. Además, nótese que precisamente en las atribuciones que tiene la Junta Directiva del Parques están: -definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque, contribuir con la protección y conservación ambiental del parque nacional, -establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos, -definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla. aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país. 3.Sobre los fines comerciales disfrazados de fines sostenible en la fragmentación del Área Silvestre Protegida No son de recibo las argumentaciones infundadas que los accionantes hacen en este punto ya que se basan en suposiciones que carecen de fundamento para solicitar su declaratoria de inconstitucionalidad. Es claro que la regulación del Parque Nacional permite únicamente aquellas actividades que se comprometan con la realización de los fines de esa ley y con el desarrollo económico y social del Golfo de Nicoya, la preservación del patrimonio histórico cultural, los fines de la ley en general y que no riña con la protección de los recursos naturales y con el turismo sostenible. La Junta Directiva del Parque, se regirá en su estructura, organización y funcionamiento por la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. Asimismo, toda ley que se introduce en nuestro único ordenamiento jurídico, debe coexistir con las normas vigentes de acuerdo con las reglas de aplicación del derecho, en ese sentido, el actuar de los órganos, instituciones, u organizaciones en el marco de esta ley, están en la obligación de actuar conforme los parámetros de responsabilidad y bajo los límites impuestos por el mismo ordenamiento jurídico, por ejemplo, la ley de Contratación Administrativa, Ley contra la corrupción y el enriquecimiento ilícito, etc, etc. Los recursos con que cuente el parque deberán estar debidamente administrados conforme las leyes lo señalan, y las gestiones, fideicomiso, inversiones, desarrollo de infraestructura, o los procesos de permisos Desarrollo de infraestructura o concesiones todo deberá hacerse bajo el control de la Contraloría General de la Republica.Por lo que de ninguna manera se acepta lo señalado por los accionantes indebidamente en cuanto a que se disfrazan otro (sic) fines en esa ley. 4. En cuanto a la Junta Directiva que administrará el parque No son de recibo los argumentos de los accionantes y por tanto se rechazan categóricamente, en relación a (sic) la alegada inconstitucionalidad de la integración de la Junta Directiva del Parque. Son erróneas las apreciaciones de los accionantes, al afirmar que el Parque no contara con una vigilancia o administración oficial del Estado y por considerar excluido el SINAC de la vigilancia del parque. La ley señala que, para el gobierno y la administración del Parque Nacional Isla San Lucas se crea una Junta Directiva como un órgano de desconcentración máxima adscrito al Ministerio de Ambiente y Energía (Minae), con personalidad jurídica instrumental para el ejercicio de sus competencias. La Junta Directiva del Parque Nacional Isla San Lucas estará integrada por los ministros o presidentes de: Ministerio de Ambiente y Energía, Ministerio de Cultura, Instituto Costarricense de Turismo (ICT), Alcalde de la Municipalidad del cantón Central de Puntarenas, un representante del Poder Ejecutivo y de la Cámara de Turismo de Puntarenas.Entre las atribuciones de la Junta Directiva del Parque están: -definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque, -contribuir con la protección y conservación ambiental del parque nacional, -establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos, -definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla. -aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país.Nótese, que la integración de la Junta reúne funcionarios de alto nivel de instituciones del Estado, la junta en sí misma es un órgano de desconcentración máxima con personalidad jurídica instrumental, por lo que, no es correcto señalar que no cuente con una vigilancia oficial, en segundo lugar, en materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Por lo que claro que la vigilancia sobre la isla será la vigilancia oficial del Estado mediante las instituciones que integran la Isla y además, contara con el criterio técnico del SINAC. 5. Sobre la incorporación de oficiales de seguridad privada en un parque nacional No es de recibo lo alegado por los accionantes, en primer lugar, porque los guardaparques no están excluidos de la vigilancia y seguridad del parque y además, porque la ley es clara en señalar que los oficiales de seguridad privada, no tendrán autoridad de policía ni podrán ejercer funciones indelegables propias de la administración.Por lo que los alegatos de los accionantes no proceden y deben ser rechazados. 6. En relación con las concesiones y la autorización para hacer muelles y atracaderos en parques nacionales De igual forma, rechazamos los argumentos de inconstitucionalidad esgrimidos por los accionantes, antes se indicó como la Sala Constitucional considera que la alta prioridad del desarrollo turístico sostenible...deberá entenderse constitucional, por lo que la ley del Parque Nacional Isla San Lucas debe entenderse como una ley especial, que crea un parque nacional, pero señala regulaciones especiales en consideración a las características y necesidades de la Isla San Lucas y la importancia que tendrá la visitación turística para que los nacionales y extranjeros puedan conocer el patrimonio histórico arquitectónico. Por lo anterior, es que el Parque podrá desarrollar toda la infraestructura necesaria para facilitar el turismo sostenible, incluyendo la dotación de agua, electricidad, telecomunicaciones, higiene y saneamiento, muelles, atracaderos, servicios de alimentación y vías de acceso, información y comunicación en diversos formatos, así como la que estime pertinente para el provecho de los visitantes y asegurar el disfrute y apreciación de la riqueza histórica, arquitectónica y natural del parque.Asimismo, la ley señala que en cuanto a la construcción de muelles, atracaderos y demás facilidades marítimas, la junta directiva podrá contar con el Incop, el MOPT y el ICT. Se rechaza lo alegado en cuanto a que las concesiones y la autorización para hacer muelles y atracadero en parques nacionales viola normas constitucionales, porque debe considerarse la integralidad del articulado que regula esta ley y destacar el equilibrio y las garantías que la ley contiene para la protección al ambiente. 7. En cuanto a que el financiamiento es incierto Este argumento debe ser rechazado porque incluye una serie de suposiciones o presunciones que no necesariamente deberán concretarse y que tampoco, necesariamente, ocurrirían producto de la vigencia de la Ley impugnada. No es válido aducir que se trata de financiamiento incierto, porque se incluyen en recursos que hoy existen, como son los recursos que corresponden al Sistema Nacional de Áreas de Conservación (Sinac).Si bien las transferencias de los presupuestos de la República van a depender de que se cuente con recursos frescos y libres disponibles. No puede a priori, excluirse como fuente posible de financiamiento. En cuanto a las donaciones de cualquier persona física o jurídica, esa también en una posibilidad. Por ejemplo, que se puede llevar a cabo una campaña para recibir donaciones para restauración de los sitios históricos. Por otra parte, al señalarse que los servicios que puede cobrar el parque por la utilización de sus servicios, los cánones por concesiones y permisos deberán ser invertidos en el mismo parque nacional, esa constituiría una fuente de ingresos permanente. III. PETITORIA Conforme con el informe rendido, se solicita sea rechazada la acción de inconstitucionalidad”.
140. 141En sentencia nro. 2021008520 de las 9:15 horas de 28 de abril de 2021, dictada por este Tribunal en el expediente nro. 21-006852-0007-CO, se dispuso: “I.- Sobre el objeto de impugnación. En el sub examine, el accionante estima que la Ley n.° 9892 de Creación del Parque Nacional Isla San Lucas lesiona el principio de no regresión en materia ambiental, pues a pesar de tratarse de un parque nacional, la ley impugnada en el ordinal 8 atribuye su administración a una Junta Directiva y no al SINAC como corresponde, así como también modificó el objetivo esencial de un parque nacional, sobreponiendo la visitación a la conservación, al haberle dado en los artículos 2 y 4 alta prioridad al desarrollo turístico sostenible, fin que se aparta del modelo de manejo de parque nacional y que, por ello lesiona el principio de no regresión en materia ambiental y el artículo 50 constitucional, al reducir su nivel de protección anterior, así como el artículo 35 de la Ley Orgánica del Ambiente y el 12 de la Ley n.° 6084 de Creación del Servicio de Parques Nacionales.Refiere que, además, se lesiona el principio de objetivación de la tutela ambiental y los artículos 11 y 50 constitucionales, pues tales modificaciones se realizaron sin los estudios técnicos previos que se requiere para estos casos, lo que, además, vulnera los artículos 32, 33, 34 36 y 37 de la Ley Orgánica del Ambiente y el numeral 59 de la Ley de Biodiversidad. Señala que, además, el artículo 13 de la ley impugnada dispone la creación de un fideicomiso como instrumento de administración del parque nacional, lo que contraviene lo establecido en la Ley de Fortalecimiento del Control Presupuestario, ya que podría evadir los controles a los cuales se encuentra sujeto el presupuesto público. II.- A partir de lo anterior, resulta preciso indicar de previo, que no corresponde a este Tribunal determinar si una norma de rango legal contraviene o no una norma de la misma jerarquía, toda vez que ello no constituye un asunto de constitucionalidad, sino un tema de legalidad ordinaria, en cuyo caso es competencia de la jurisdicción común definir la norma aplicable a un caso concreto; nótese que definir una presunta antinomia entre normas de rango legal, es una de las funciones ordinarias de la jurisdicción de legalidad y no de la jurisdicción constitucional, tal como bien se define en la Ley de la Jurisdicción Constitucional.De ahí que la acción sea inadmisible únicamente en cuanto se alegan vulnerados los artículos 32, 33, 34, 35, 36 y 37 de la Ley Orgánica del Ambiente, el numeral 59 de la Ley de Biodiversidad, el 12 de la Ley n.° 6084 de Creación del Servicio de Parques Nacionales y la Ley de Fortalecimiento del Control Presupuestario. En lo demás, este proceso resulta admisible. III.- El artículo 84 de la Ley de la Jurisdicción Constitucional dispone que, si después de planteada la acción y antes de la publicación del aviso respectivo se presentaren otras acciones de inconstitucionalidad contra la misma ley, decreto, disposición, acuerdo o resolución, esas acciones se acumularán a la primera y se tendrán como ampliación. También se acumularán las acciones que con ese carácter interpongan las partes de los juicios suspendidos, si fueren presentadas dentro de los quince días posteriores a la primera publicación del aviso.Según se acredita en autos, este proceso fue interpuesto el 8 de abril de 2021. Por lo expuesto y ante la evidente conexidad que existe entre el objeto de impugnación en este asunto y lo cuestionado en el expediente número 21-005756-0007-CO que se tramita ante esta Sala desde el 23 de marzo de 2021, y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas, se dispone, en este acto, acumular este expediente al citado y ampliar los extremos correspondientes. Por tanto: Se rechaza de plano la acción únicamente en cuanto el accionante alega vulnerados los artículos 32, 33, 34, 35, 36 y 37 de la Ley Orgánica del Ambiente, el numeral 59 de la Ley de Biodiversidad, el 12 de la Ley n.° 6084 de Creación del Servicio de Parques Nacionales y la Ley de Fortalecimiento del Control Presupuestario. En lo demás, este proceso resulta admisible. Acumúlese esta acción a la que bajo expediente número 21-005756-0007-CO se tramita ante esta Sala y téngase como ampliación de la misma”.
141. 142Por escrito incorporado al expediente digital el 4 de mayo de 2022, Sebastián Morales Pérez, cédula de identidad 208430018, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
142. 143Por escrito incorporado al expediente digital el 4 de mayo de 2022, Óscar Barboza Lizano, cédula de identidad 109030806, plantea coadyuvancia activa y expone: “Muy preocupado por la reducción del área de protección y la creación de una zona comercial que se establece en la Ley del Parque Nacional Isla San Lucas, sin mediar estudios especializados que sustenten la reducción. Se adjuntan los estudios: • Evaluación de las pesquerías en la zona media y externa del golfo de Nicoya en Costa Rica del 2013 elaborador por José Ángel Palacios del BIOMARCC-SINAC-GIZ • y PARÁMETROS POBLACIONALES, TRAMA ALIMENTICIA DE LA CORVINA AGUADA Cynoscion squamipinnis (Günther, 1867), Y CARACTERÍSTICAS FÍSICO QUÍMICAS EN LAS ZONAS 1 y 2, ÁREA MARINA DE PESCA RESPONSABLE PAQUERA-TAMBOR, GOLFO DE NICOYA, COSTA RICA, realizado por: M.Sc. Rosa Lidia Soto Rojas, el M.Sc. Luis Hernández Noguera, el Lic. Jose (sic) Luis Vega Alpízar y la Licda. Hannia Vega Bolaños del PROYECTO (0079-14) Aportes a la gestión pesquera artesanal y semi-industrial del Golfo de Nicoya, Costa Rica de la Escuela de Ciencias Biológicas y Estación de Biología Marina de la Universidad Nacional.Ambos estudios demuestran la importancia ecológica del Parque Nacional Isla San Lucas y nos permiten dimensionar el posible impacto o riesgos que podrían tener los ecosistemas y los procesos biológicos asociados al reducirse el área de protección, que como se desprende de los estudios es una zona de reproducción de especies marinas de importancia ecológica y significativa para los pescadores artesanales, sin duda antes de tomar una decisión como la reducción del área de protección es necesario realizar estudios que aclaren a mayor profundidad: cuál va a ser el impacto en los ecosistemas marinos, y en las comunidad de pescadores artesanales locales con la mencionada reducción. De igual forma contrario a los compromisos internacionales de Costa Rica en materia de conservación, el establecimiento de una zona especial comercial afectará la salud del ecosistema, contrario a los objetivos de los Parques Nacionales.Por lo anterior, se apoya la Acción de Inconstitucionalidad ya que las Áreas Silvestres Protegidas como lo es el caso del Parque Nacional Isla San Lucas no tienen por qué ser reducidas, si no hay estudios previos que evalúen el impacto al hacerlo. Es por lo anterior, que solicito respetuosamente que la acción sea declarada con lugar porque la reducción del área pone en serios riesgos a los ecosistemas marinos cuyos impactos podrían ser significativos para su protección. Es importante señalar que el artículo 3 de la ley del Parque Nacional Isla San Lucas, establece las delimitaciones, desde nuestra perspectiva es total y absolutamente inconstitucional, ya que deja desprotegidas muchas hectáreas de la parte marina y además en cuanto a la parte terrestre se crea una zona especial, la cual nos llama la atención. Se supone que en Parques Nacionales no deberían existir esas zonas especiales dedicadas a actividades comerciales por lo tanto se estaría violentando el artículo 3 la Convención de Washington que prohíbe los fines comerciales en parques nacionales suscrita por nuestro Estado”.
143. 144Por escrito incorporado al expediente digital el 4 de mayo de 2022, Tatiana Cantillano Rodríguez, cédula de identidad 118650694, Patricia Villalobos Arias, cédula de identidad 108310698, Leonor Urrutia Ruiz, documento de identidad 155812839512, Marcela Rivera Rodríguez, documento de identidad 155809945629, Jeannina Rodríguez Elizondo, cédula de identidad 107690778, Sebastián Bravo Rivera, cédula de identidad 118600766, Yanory Rodríguez Castro, cédula de identidad 104070792, Álvaro Medina Santana, cédula de identidad 501660208, Katherine Rodríguez Zúñiga, cédula de identidad 118040218, Marlene Jiménez Mora, cédula de identidad 104650154, Joselyn Matei Mora, cédula de identidad 116690702, Wendy Rivera Ramírez, cédula de identidad 111860844, Minor Monge, cédula de identidad 900710034, Mario Cantillano Gamboa, cédula de identidad 102450454, Víctor Cantillano Monge, cédula de identidad 106060443, Luis Cantillano Monge, cédula de identidad 900830147, Maribel Marín Miranda, cédula de identidad 106650566, Roberto Monge Monge, cédula de identidad 105260066, Jefferson Chaves Monge, cédula de identidad 117530218, José Garita Valverde, cédula de identidad 107080749, María del Rocío Jiménez Chacón, cédula de identidad 105000606, Hugo González Jiménez, cédula de identidad 303800577, Luis Guillermo Salazar, cédula de identidad 107030197, César Salguero Hernández, cédula de identidad 304140736, Guillermo Rodríguez Castro, cédula de identidad 105320679, Stephanie Medina Rodríguez, cédula de identidad 112690321, Tatiana Vargas González, cédula de identidad 205720501, Ana Virginia Rodríguez, cédula de identidad 105100225, Margarita Rodríguez Castro, cédula de identidad 105320682, Diana Salazar Rodríguez, cédula de identidad 115280634, Elsa Paniagua Chacón, cédula de identidad 105680788, Carolina Méndez Contreras, cédula de identidad 503800856, Laura Rojas Berrocal, cédula de identidad 112500335, Flory Berrocal Paniagua, cédula de identidad 106390274, Carolina Berrocal Paniagua, cédula de identidad 109000792, Rafael Berrocal Soto, cédula de identidad 102810321, Susana Rojas Berrocal, cédula de identidad 110850879, Olga González Torres, cédula de identidad 103910121, Vinicio Marín González, cédula de identidad 110980179, Francisco Marín Sierra, cédula de identidad 104160787, Marcela Marín González, cédula de identidad 109030567, Kattia Marín González, cédula de identidad 109650472, Randall Rodríguez Rodríguez, cédula de identidad 108670161, Walter Umaña Ruiz, documento de identidad 133812840613, Ana Ocampo Marín, cédula de identidad 106960892, Fernán Rodríguez Porras, cédula de identidad 111190615, Fernán Rodríguez Castro, cédula de identidad 103650609, Ruth Jiménez Mora, cédula de identidad 106320325, Walter Rodríguez Rodríguez, cédula de identidad 107140076 y María Fernanda Leitón Quesada, cédula de identidad 117230488, plantean coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
144. 145Por escrito incorporado al expediente digital el 5 de mayo de 2021, Isaac Espinoza Alvarado, cédula de identidad 402590518, interpone coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
145. 146Por escrito incorporado al expediente digital el 5 de mayo de 2021, David Argüello Cáceres, cédula de identidad 901150123, formula coadyuvancia activa en los mismos términos que en el escrito incorporado al expediente digital el 8 de abril de 2021.
146. 147Por resolución de las 13:42 horas del 17 de mayo de 2021, la Presidencia de la Sala dispuso: “Se previene a las personas coadyuvantes activas que interpusieron su gestión entre el 5 de abril de 2021 y el 5 de mayo de 2021 que, dentro del plazo de TRES DÍAS, contado a partir del siguiente a la notificación de esta resolución y bajo apercibimiento de denegarle el trámite a su gestión en caso de incumplimiento, deberán: aportar la solicitud de coadyuvancia debidamente firmada y autenticada, así como cancelar y agregar el timbre del Colegio de Abogados por la suma de doscientos setenta y cinco colones por cada una de las firmas autenticadas en el escrito de interposición de la coadyuvancia”.
147. 148Mediante constancia suscrita el 19 de mayo de 2021 por la técnica de la Sala de la Corte de la Sala Constitucional se indicó que: “una vez revisado en el SISTEMA COSTARRICENSE DE GESTIÓN DE DESPACHOS JUDICIALES el CONTROL DE DOCUMENTOS RECIBIDOS y hecha la revisión minuciosa en el ACCIÓN DE INCONSTITUCIONALIDAD que se tramita en el expediente número 21-005756-0007-CO promueve por FRANCISCO ÁLVARO ANTONIO SAGOT RODRÍGUEZ , hace constar: Que la resolución de las trece horas cuarenta y dos minutos del diecisiete de mayo de dos mil veintiuno no fue notificada a las partes coadyuvantes ADRIÁN MORA MOLINA, CHERLIN YANIXA URBINA ROSALES, EDUARDO JOSUÉ MORALES BERMÚDEZ, GABRIEL JESÚS BELLO ESCALONA, KEILYN INDIRA CALVO CAMPOS, KEVIN RICARDO NÚÑEZ JAIMES, LEYDI CRUZ SEQUEIRA OBANDO, MADELINE GARITA MATAMOROS, MARIO ANDRÉS BOZA LORÍA, por no haber señalado lugar, casa, oficina, medio electrónico o número de fax para tal efecto”.
148. 149Por escrito incorporado al expediente digital el 20 de mayo de 2021, Jorge Alberto Serendero Hülssner, en su condición de apoderado generalísimo sin límite de suma de Fundación For The Oceans, reafirmó lo indicado en el documento aportado anteriormente ante este Tribunal.
149. 150Mediante constancia suscrita el 25 de mayo de 2021 por la técnica de Sala de la Corte se consignó: “Que revisado, en el SISTEMA COSTARRICENSE DE GESTIÓN DE DESPACHOS JUDICIALES el CONTROL DE DOCUMENTOS RECIBIDOS; y, hecha una minuciosa revisión del expediente en que se tramita esta ACCIÓN DE INCONSTITUCIONALIDAD, no aparece que del diecisiete al veinticuatro de mayo del dos mil veintiuno, los coadyuvantes: AARON JOSUÉ CHAVEZ MOLINA, ADRIÁN MORA MOLINA, ALBERTH SAÚL MORA MADRIGAL, ALBERTO DAVID LEITÓN GODÍNEZ, ALBERTO DE JESÚS CRUZ RAMÍREZ, ALESSIA BEATRIZ BARLETTA BOGANTES, ALLAN ARTURO SOLANO LEÓN, ÁLVARO MARTÍN MEDINA SANTANA, ANA LORENA DE LA TRINIDAD OCAMPO MARÍN, ANA VIRGINIA RODRÍGUEZ CASTRO, ANDERSSON MONTES CARRILLO, ANDRÉS MAURICIO ESPINACH BONILLA, ÁNGEL GABRIEL LOAIZA VARGAS, ANGIE MICHELL GÓMEZ LÓPEZ, ANLLEL RAQUEL CORDERO MAYORGA, ARIEL GRANDA SOLANO, ASOCIACIÓN SINDICAL DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA E INSTITUCIONES AFINES, BRANDON ANTONIO SÁNCHEZ CHAVARRÍA, BRANDY TAMARA JIMÉNEZ ARAYA, CARLOS ANDRÉS MATAMOROS DURÁN, CAROLINA AUXILIADORA BERROCAL PANIAGUA, CÉSAR EDUARDO SALGUERO HERNÁNDEZ, CHERLIN YANIXA URBINA ROSALES, CHRISTOPHER ANDRÉS SOLÍS CHAVARRÍA, CINTYA JIMÉNEZ MURILLO, CLARISSA LEÓN ALFARO, CYNTHIA LISSETH ALVARADO BRAVO, CYNTHIA MARÍA BONILLA ALFARO, DANIEL AGUILERA NÚÑEZ, DANIEL ALBERTO MORALES GUTIÉRREZ, DANIEL IVÁN MENA VARGAS, DANIELA AGÜERO ARAYA, DANIELA VARGAS LEITÓN, DANY ALBERTO VILLALOBOS, DAVID ALEJANDRO ARGÜELLO CÁCERES, DAVID ANTONIO MARÍN ZÚÑIGA, DAVID JOSUÉ RODRÍGUEZ PANIAGUA, DIANA HIDALGO ALFARO, DIANA VALERIA SALAZAR RODRÍGUEZ, DIEGO DE JESÚS CRUZ BERMÚDEZ, DOUGLAS SEBASTIÁN BRAVO RIVERA, EDITH NÚÑEZ CARBAJAL, EDUARDO JOAQUÍN CARRILLO JIMÉNEZ, EDUARDO JOSUÉ MORALES BERMÚDEZ, ELSA MARÍA DEL CARMEN PANIAGUA CHACÓN, EMILY ARLETH SEGURA MORA, EMMANUEL ARCE QUESADA, ESTEBAN CASTRO OVIEDO, ESTEBAN ROBERTO VALVERDE VÁSQUEZ, ESTEFANY MURILLO MADRIGAL, FABIAN HERRERA NÚÑEZ, FABIOLA GONZÁLEZ MARTÍNEZ, FEDERACION COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, FERNÁN ELIAS RODRÍGUEZ PORRAS, FERNÁN RODRÍGUEZ CASTRO, FIDEDIGNO CORRALES BARRANTESD, FIORELLA VEGA MOTTA, FLORY ELIZONDO PERAZA, FLORY ROCÍO DE LOS A BERROCAL PANIAGUA, FRANCISCO JESÚS SAN LEE CAMPOS, FRANCISCO MARÍN SIERRA, GABRIEL ALESANDRO ESPINACH BONILLA, GABRIEL JESÚS BELLO ESCALONA, GABRIELA NÚÑEZ SALAZAR, GABRIELA RODRÍGUEZ CASTRO, GEISÓN JOSUÉ FUENTES ARGUEDAS, GRETTEL AGUILERA SALAZAR, GRETTEL SÁNCHEZ MONTEZUMA, GUILLERMO ALEXANDER RODRÍGUEZ CASTRO, HAZEL ARACELI OVIEDO GÓMEZ, HAZEL VANESSA JIMÉNEZ SELVA, HELLEN ADRIÁNA BARRANTES MURILLO, HILLARY VALERIA CUBERO ARAYA, HUGO ALBERTO GONZÁLEZ JIMÉNEZ, HUGO ALONSO ARIAS RAMÍREZ, IAN JOSUÉ CALVO JIMÉNEZ, ISAAC ANDRÉS ESPINOZA ALVARADO, ISABEL CRISTINA SOLÍS SOLANO, ISAURA FABIOLA MORA BARCENAS, IVÁN ALBERTO ROJAS ARCE, IVÁN JAFET MORA BRENES, JACKELINE VILLALOBOS FERNÁNDEZ, JAIRO ALBERTO SALAS SÁNCHEZ, JAVIER RODRÍGUEZ FONSECA, JEANNINA DE LOS ÁNGELES RODRÍGUEZ ELIZONDO, JEFFERSON ROBERTO CHAVES MONGE, JEILYN ELENA FLORES NAVARRO, JENIFER VARGAS MADRIGAL, JENNIFER VÁSQUEZ ARIAS, JERRY ALBERTO FERNÁNDEZ CARRIÓN, JEYMAR JAFET DIXON SOLANO, JOEL JAVIER CHAVEZ RIOS, JOHANNA REBECA MURILLO VIQUEZ, JOHEL ANDRE CHAVEZ MOLINA, JORGE ENRIQUE MORALES GÓMEZ, JORGE GERARDO JIMÉNEZ ARIAS, JOSE ALEJANDRO BOURRET MARÍN, JOSE ANDRÉS ORTÍZ UREÑA, JOSE ANTONIO GARITA VALVERDE, JOSE CARLOS ARAYA CAMPOS, JOSE DAVID CANALES MORALES, JOSE FABRICIO AVILA SANABRIA, JOSE MAURICIO BRENES FERNÁNDEZ, JOSE PABLO NÚÑEZ SALAZAR, JOSE ROBERTO MONGE MONGE, JOSELYN TATIANA MATTEI MORA, JOSHUA GONZÁLEZ ALFARO, JOSUÉ DAVID GONZÁLEZ PRENDAS, JOSYAH BARAHONA PERÉZ, JUAN ALFONSO RAMÍREZ RUIZ, JUAN MANUEL MORALES PRADO, JUAN RAFAEL DE LA TRINIDAD ORTÍZ CARRIÓN, KACEY GABRIEL ALVARADO JIMÉNEZ, KARLA VALESKA SOLÍS SALAZAR, KATHERINE MARÍA RODRÍGUEZ ZÚÑIGA, KATHLEEN SOTO FONSECA, KATTIA DE LOS ÁNGELES MARÍN GONZÁLEZ, KEILYN INDIRA CALVO CAMPOS, KEILYN LETICIA LÓPEZ LÓPEZ, KENDRI YURLEY CHAVARRÍA MENA, KENDRY VINICIO JIMÉNEZ HERNÁNDEZ, KERLYN DANIELA JIMÉNEZ ARAYA, KEVIN RICARDO NÚÑEZ JAIMES, KEYTIN MARÍANNE ZAPATA CORTÉS, KEYTLIN MARIELL GÓMEZ ZÚÑIGA, LARISSA SOFÍA CHAVEZ MOLINA, LAURA DE LOS ÁNGELES BARRIENTOS CALDERÓN, LAURA SUSANA PORRAS ROJAS, LAURA VANESSA ROJAS BERROCAL, LEIDY CRISTINA JIMÉNEZ ELIZONDO, LENNI MARÍA JIMÉNEZ ELIZONDO, LEÓNARDO ENRIQUE NACH VIVAS, LEYDI CRUZ SEQUEIRA OBANDO, LILLIAM DANIELA MORA MONTOYA, LISBETH DANIELA SÁNCHEZ RODRÍGUEZ, LUIS DIEGO BUSTOS ARGUEDAS, LUIS GUILLERMO CANTILLANO MONGE, LUIS GUILLERMO SALAZAR HERNÁNDEZ, MADELINE GARITA MATAMOROS, MANUEL ALBERTO CERDAS SALAZAR, MANUEL HERRERRA CORRALES, MARCELA DE LOS ÁNGELES MARÍN GONZÁLEZ, MARCELA JIMÉNEZ MURILLO, MARCELO ANTONIO ROA ROSALES, MARCO ANTONIO CHAVARRÍA SÁNCHEZ, MARCOS VINICIO AGÜERO HERNÁNDEZ, MARGARITA DEL SOCORRO PRENDAS SALAZAR, MARGARITA ROSA DEL CARMEN RODRÍGUEZ CASTRO, MARÍA ÁNGELA DEL CARMEN UREÑA JIMÉNEZ, MARÍA DANIELA AGUILAR CHAVARRÍA, MARÍA DEL ROCÍO JIMÉNEZ CHACÓN, MARÍA FERNÁNDA CERDAS SOLÍS, MARÍA FERNÁNDA LEITÓN QUESADA, MARÍA ISABEL ALFARO CHAVARRÍA, MARÍA ISABEL BONILLA ALFARO, MARÍA JESÚS GONZÁLEZ JIMÉNEZ, MARÍA JESÚS VIQUEZ CAMACHO, MARÍA LEÓNOR URRUTIA RUIZ, MARÍA MARGARITA GUZMÁN VARGAS, MARIBEL DE JESÚS MARÍN MIRANDA, MARICEL DE GERARDO MADRIGAL HERNÁNDEZ, MARIELA DEL MILAGRO BRENES OROZCO, MARIO ANDRÉS BOZA LORIA, MARIO CANTILLANO GAMBOA, MARIO MINOR MONGE MONGE, MARIPAZ ESPINACH BONILLA, MARLENE JIMÉNEZ MORA, MARLENE MARITZA VALVERDE CHACÓN, MARYETH CAROLINA MÉNDEZ CONTRERAS, MAURICIO ESPINACH MONTERO, MAYELA RIVERA RODRÍGUEZ, MAYKE ALBERTO MONGE VARGAS, MELANIE PAMELA QUIRÓS PORRAS, MELANY TATIANA GAMBOA MATA, MICHELLE NAYERY CASTRO AGUILAR, MICHELLE ULLOA MARTÍNEZ, MONSERRAT MARÍA RAMÍREZ MADRIGAL, NATALIA CORDERO MURILLO, NATASHA MARÍA SOLÍS SOLORZANO, NIKOLE ALEXANDRA SEGURA MORA, NOE GUILLERMO RIVERA VALVERDE, NURIA DEL CARMEN ARAYA CRUZ, OLGA GONZÁLEZ TORRES, OLGA MAYELA SALAZAR BONILLA, OSCAR BARBOZA LIZANO, PAOLA SALAZAR AGUILERA, PATRICIA DEL PILAR VILLALOBOS ARIAS, RACHELL VALERIA ROJAS SOLANO, RAFAEL ÁNGEL BERROCAL SOTO, RANDALL RODRÍGUEZ RODRÍGUEZ, RICARDO JESÚS GONZÁLEZ AVILA, ROBERTO MIGUEL MOLINA UGALDE, RUTH JIMÉNEZ MORA, SAÚL MATARRITA ALVARADO, SEBASTIÁN JOB CASTRO ROJAS, SEBASTIÁN MORALES PERÉZ, SERGIO ANTONIO GONZÁLEZ JIMÉNEZ, SERGIO GONZÁLEZ AVILA, SHARON CAMILA ALFARO NÚÑEZ, SHARON PRISCILLA BLANDON RUIZ, SHAZAD ROLANDO FUENTES CHAVARRÍA, SHEINER MAURICIO UMAÑA ERAZO, SHIRLEY GABRIELA MÉNDEZ CORDONERO, SHIRLEY MARÍA MARTÍNEZ MARTÍNEZ, SIAM JOSUÉ HERRERA ARIAS, SILVIA ELENA CEDEÑO ULATE, SOFÍA CORDERO CORDERO, STACY YULIANA BARRANTES GONZÁLEZ, STEPFANIE SUSANA BRENES SOLANO, STEPHANIE FABIOLA ARRIETA ANGULO, STEPHANIE PAOLA MEDINA RODRÍGUEZ, STEVEN ALBERTO JUAREZ SEGURA, STEVEN GONZÁLEZ SALAZAR, STEVEN JOSE LOZANO RAITH, SUSANA MARCELA ROJAS BERROCAL, TAMARA SÁNCHEZ DI LUCA, TATIANA DE LOS ÁNGELES CANTILLANO RODRÍGUEZ, TATIANA VARGAS GONZÁLEZ, TELMA CLARIBEL MOLINA NÚÑEZ, TROY GABRIEL VARGAS ORTÍZ, VALERIA BEATRIZ CORTÉS BRENES, VALERIA CALDERÓN MORA, VALERIA MARÍN CALDERÓN, VALERIA SÁNCHEZ DI LUCA, VÍCTOR HUGO DE LA TRINIDAD CANTILLANO MONGE, VINICIO MARÍN GONZÁLEZ, VIVIANA MARÍA MORA MADRIGAL, WALTER ANDRÉS URRUTIA RUIZ, WALTER JESÚS DE LA TRINIDAD RODRÍGUEZ RODRÍGUEZ, WENDY GONZÁLEZ SALAZAR, WENDY MARÍA RIVERA RAMÍREZ, WILLIAM SALAZAR CARRANZA, YAMILETH ELIZONDO PERAZA, YANELLY DE LOS ÁNGELES ABARCA ABARCA, YANORY RODRÍGUEZ CASTRO, YARIEL MORA CHAVARRÍA, YENDRY PAMELA ESTRADA RIVERA, YENDRY PAOLA CALDERÓN LEÓN, YOLANDA GERARDINA MADRIGAL HERNÁNDEZ, YULISSA OROZCO ALFARO hayan presentado escrito o documento alguno, para cumplir con lo prevenido en la resolución de las trece horas cuarenta y dos minutos del diecisiete de mayo de dos mil veintiuno, dictada en la ACCIÓN DE INCONSTITUCIONALIDAD número 21-005756-0007-CO promovida por FRANCISCO ALVARO ANTONIO SAGOT RODRÍGUEZ”.
150. 151Por escritos incorporados al expediente digital el 27 de mayo de 2021, se apersona Silvia Hernández Sánchez, en su condición de presidenta de la Asamblea Legislativa, y expone: “II. RAZONES DE OPOSICIÓN AL DICTAMEN DE PGR A. Cálculo Equivocado Comenzando por el área de manejo diferenciado, debemos aclarar que existe un error de contabilización de áreas por parte del órgano asesor de la Sala Constitucional, puesto que para establecer dichas 138 hectáreas mezcló equivocadamente el área "terrestre” de la isla con la zona adyacente de agua. En efecto, la operación que realiza la PGR es una simple sumatoria de las áreas contempladas en el desglose del artículo 6 de la Ley 9892, siendo que las denominadas "Área de edificaciones", "Área de recreo playa El Coco" y "Área de senderos" constituyen en total 65.5 hectáreas del total de 462 hectáreas de la isla, m as no el denominado "Sector de agua" (74.6 hectáreas), que no se contabiliza dentro de dichas 462 hectáreas de área total de la isla propiamente dicha, de ahí que las proporciones que reporta el informe de la P G R no son correctas.A este aspecto debe adicionarse otro de importancia relevante y es que las denominadas "Área de edificaciones", "Área de recreo playa El Coco" y " Área de senderos" no constituyen bajo ningún concepto innovaciones / creaciones establecidas o generadas por la Ley 9892, sino constataciones de realidades existentes en la Isla San Lucas (véase decreto 34282). B. Área de Manejo Diferenciado en Oposición a Protección Absoluta El tema del área de manejo diferenciado que subraya en varias ocasiones el informe de la PGR, no resulta ser una innovación en la Ley 9892/2020. El decreto 34282, cuya constitucionalidad ya fue analizada por la Sala Constitucional, fue el que trajo a colación este asunto, pues en su artículo 2 estableció: (…) Asimismo, en su artículo 5 el decreto citado dispone la aprobación de un Plan Maestro de Desarrollo Turístico Sostenible, precisamente diferenciado, sin embargo, en términos generales para TODA la isla.L a normativa de rango legal que ha promulgado la Asamblea Legislativa, más bien viene a circunscribir y delimitar las áreas sobre las cuales se pretende el desarrollo turístico sostenible, pues en efecto, de la relación de los artículos 3 párrafo final y 7 de la Ley 9892 se desprende que (…) Con la redacción que ha estado vigente a través del decreto 34282 las posibilidades de acción y acceso han estado permitidas hacia toda la isla, mientras que, con la delimitación que ha realizado la Asamblea Legislativa la zona de manejo diferenciado es la que marca y delimita tales posibilidades de acción y acceso debidamente delimitadas en su área y coordenadas, en procura del reforzamiento de la protección sobre el resto de la isla. Ahora, el manejo diferenciado en procura del desarrollo turístico sostenible, no debe entenderse como una desvinculación de esta zona del resto de la normativa tuitiva que existe en nuestro país.Así lo reconocieron las Señoras y Señores Diputados en sus intervenciones respecto a la aprobación de la Ley 9892 (…) En este mismo sentido, cuando la Asamblea Legislativa realizó la consulta al Ministerio de Ambiente y Energía, el Ministerio fue enfático al apoyar la entonces propuesta de modificación normativa, tendente a delimitar claramente las potestades de acción en el área de manejo diferenciado (…) Lo anterior tampoco resulta ser innovativo respecto al Parque Nacional Isla San Lucas pues actualmente en los diferentes parques nacionales en el territorio nacional, existe infraestructura apta y apropiada que pretende precisamente el acceso y facilitación de los visitantes, en procura de la delimitación de áreas y la protección de áreas mayores. Mediante el oficio de 22 de diciembre 2021-SINAC-DE-2047 se anexó la tabla Excel que se inserta al final del presente documento donde consta que existen obras de pavimentación, puentes, alumbrado y posteado, servicios sanitarios, restaurantes, adecuación para ley 7600, agua potable, albergues, etc. en prácticamente TODOS los parques nacionales del país.C. Pervivencia del Refugio Nacional Afirma la PGR que la Ley N .° 9892 dispone en el artículo 3 que el área marina costera está compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros, lo que supone una disminución, no justificada en criterios técnicos, del área silvestre protegida, pues bajo el Decreto Ejecutivo de creación del Refugio de Vida Silvestre, artículo 3 del Decreto N .° 29277 de 11 de enero de 2001, el área de protección se extendía por la parte marítima hasta una profundidad de 6 metros. Esta conclusión presupone que la nueva ley promulgada por la Asamblea Legislativa estaría derogando o de alguna manera inhibiendo la normativa del Poder Ejecutivo que ya ha implementado mediante el decreto 34282 que crea el Refugio de Vida Silvestre de la Isla San Lucas. Lo anterior es completamente equivocado, no solamente porque la Ley 9892 no ha dispuesto tal cosa, sino porque precisamente la voluntad expresa de los legisladores ha sido lo contrario (…) En otras palabras, el Parque Nacional incluye las aguas alrededor de la isla hasta los 3 metros de profundidad, de ahí en adelante las aguas más profundas incluidas dentro del Refugio, continúan protegidas por esta última categoría.Dicha normativa no resulta ser derogada ni modificada. La relación de los artículos 3 y 6 de la ley 9892 especifica en detalle la extensión de la zona en donde resulta permitido realizar actividades de turismo sostenible (que igualmente se permitían en los planes de manejo del Refugio), impidiendo que las mismas se realicen ahora en otras áreas de la isla. En el siguiente montaje elaborado por el Instituto Geográfico Nacional se podrá apreciar fácilmente lo que indicamos, pues se evidencia y contrastan las respectivas áreas del Parque Nacional y del Refugio: (…) D. Supuesta Disminución de la Protección: Criterio de Realidad A juicio de la PGR , el modelo de gestión diferenciado de la zona turística, responde al fomento de la actividad turística sostenible con énfasis en lo económico y en la conceptualización, mercadeo y promoción de la isla como atracción turística, más que a criterios de conservación y preservación de los recursos naturales y culturales, siendo que tales actividades turísticas no responden al concepto de ecoturismo, particularmente, indica la PGR , no es la actividad turística que se considera conciliable con la categoría de manejo de un parque nacional, especialmente reforzado porque en un Parque Nacional no pueden otorgarse concesiones, ni otorgarse permiso para establecer instalaciones distintas a las del Servicio Nacional de Parques Nacionales, es decir, las comerciales, las de transporte, las deportivas, artísticas y culturales que incentiven la atracción turística y la visitación a la isla.Este criterio es errado. En primer lugar, debemos dejar claro que "ecoturismo" y "actividad turística sostenible", no son ni remotamente sinónimos. El primer concepto resulta ser la “observación y apreciación de la naturaleza o las culturas tradicionales en las zonas naturales”, mientras que el segundo constituye el “turismo que tiene plenamente en cuenta las repercusiones actuales y futuras, económicas, sociales y medioambientales para satisfacer las necesidades de los visitantes, de la industria, del entorno y de las comunidades anfitrionas (…) Precisamente el SINAC dentro del marco del Proyecto Fortalecimiento de Programa de Turismo en Áreas Silvestres Protegidas (…) ha apostado por este segundo enfoque de las actividades turísticas sostenibles, lo cual ha plasmado en el documento ESTRATEGIA DE TURISMO SOSTENIBLE EN LAS ÁREAS SILVESTRES PROTEGIDAS DEL SISTEMA NACIONAL DE ÁREAS DE CONSERVACIÓN (…) Esta realidad se ve reflejada en la tabla de Excel adjunta (…), como se dijo correspondiente al oficio 22 de diciembre 2021 – SINAC-DE-2047, donde, a manera de ejemplo, cinco parques nacionales cuentan con servicio de restaurante y seis con servicios de albergue para visitantes.Todavía más, la previsión de otorgar concesiones en la Isla de San Lucas ha estado pendiente en el MINAE desde el año 2012; así se lee en el PLAN DE MANEJO DEL REFUGIO NACIONAL DE VIDA SILVESTRE ISLA SAN LUCAS, elaborado por el Sistema Nacional de Áreas de Conservación (…) En el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas 2020-2030 (…) se determinaron Debilidades, Oportunidades y Fortalezas del Área Silvestre Protegida, que reflejan con claridad necesidades y posibilidades de mejora que coinciden con lo establecido en la Ley de Creación del Parque, así como coincide particularmente con el tema de las eventuales concesiones de servicios, para efectos de compensar algunas de las debilidades que se apuntaban para el entonces aún Refugio (…) Solo para subrayar una de las debilidades que tenía la isla bajo el esquema anterior del Refugio, enfatizamos el caso concrete del vandalismo que afecto a la Isla San Lucas, generando la perdida de valioso patrimonio histórico, todo producto del abandono por parte del personal de SINAC, debido precisamente a la inseguridad que tenía el lugar.Entre el viernes en la noche del 25 de noviembre del año 2017 y la madrugada del sábado 26 de noviembre, las llamas consumieron el edificio histórico donde se ubicaba la antigua comandancia en la isla San Lucas. Se trata de una estructura de dos niveles y de 100 metros cuadrados. La edificación quedó totalmente destruida por el fuego. El Organismo de Investigación Judicial (OIJ) abrió una investigación para determinar las causas del incendio, sin embargo, no obtuvo resultados sobre los responsables de tal daño. Todo ello ocurrió debido al abandono en que se encontraba el Refugio, con una disposición administrativa y de personal insuficiente para la protección del patrimonio histórico. Sobre la ocurrencia de estos hechos se pueden citar los siguientes oficios remitidos por el Sistema Nacional de Áreas de Conservación, a la oficina del Diputado Carlos Ricardo Benavides; (…) se considera que la interpretación normativa que presupone el informe de asesoría de la PGR a la Sala Constitucional, resulta ser completamente ajeno a la realidad y principalmente, desapegada a la integralidad de la normativa aplicable.Olvida la PGR que, desde la implementación de la Ley del Servicio de Parques Nacionales en 1997, no solo se propició la conservación y preservación, sino también la visitación, y que, con el transcurso de los años, el turismo sostenible (Ley de Biodiversidad, 1998), ha llegado a convertirse en un pilar fundamental del sistema de conservación, al punto que ha debido establecerse la delimitación de las zonas de acceso turísticas como un criterio básico de acción administrativa. En esa misma línea de pensamiento se lee en el Informe de Servicios Técnicos de la Asamblea Legislativa (AL-DEST-IJU-006-2020 (…) En la hoja Excel siguiente (del oficio 22 de diciembre 2021 – SINAC-DE-2037 puede apreciarse las extensiones y proporción de dichas zonas en los diversos parques nacionales y refugios de vida silvestre existentes en el país, constatándose que, precisamente en procura de la protección total y absoluta del 96.09 por ciento de dichas áreas, se propicia la visitación y el turismo sostenible del 3.91% de los parques nacionales del país (total de áreas de visitación turística) (…) E. Dos temas jurídicos de relevancia y salvaguarda Esta representación desea subrayar dos aspectos del asunto que ponen en entredicho la interpretación ultra literal que realiza la PGR en su informe a la Sala acerca de lo viable e inviable en los Parques Nacionales, así como respecto a las precauciones establecidas para evitar abusos ambientales o sobre el patrimonio arquitectónico.Tal como hemos indicado arriba, nos parece que la PGR, ha pasado por alto que, desde la implementación de la Ley del Servicio de Parques Nacionales en 1977, no solo se propició la conservación y preservación, sino también el turismo sostenible (Ley de Biodiversidad, 1998), ha llegado a convertirse en un pilar fundamental del sistema de conservación. Consideramos que, desde el punto de vista normativo, la administración lo que ha realizado es una operación de armonización de cometidos públicos, es decir, en la forma que mejor garantice la realización de todos los fines públicos a que se dirige (art. 10 LGAP), siendo que dicha operación pasa necesariamente por la realización de todas aquellas actividades necesarias para la sostenibilidad de dicha visitación turística (art. 12 LGAP). Desde este punto de vista, no resulta inviable que, en la Ley 9892/20 20 se haya propiciado la correcta implementación del fin público de la conservación / preservación versus el turismo sostenible.En esta misma línea de acción la Asamblea Legislativa además dejó establecido en la LEY DE CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS No. 9892/2020 un mecanismo que también ha pasado por alto la PGR y que se encuentra regulado en el último párrafo de su artículo 9: (…) Obsérvese como no sería posible a la administración del Parque Nacional Isla San Lucas, pasar por alto los criterios ambientales y de patrimonio arquitectónicos que las instancias técnicas hayan dispuesto. A nuestro entender este aspecto resulta ser decisivo para salvaguardar cualquier abuso o desapego del marco regulatorio general ambiental y de patrimonio histórico - arquitectónico y a la vez cauteriza la zona contra todos riesgos que ha puesto de manifiesto el informe de la PGR. F. Estudios Técnicos Según el criterio comentado de la P G R en este documento la autorización de actividades de ecoturismo (remarcamos, más bien turismo sostenible) en un parque nacional o en una reserva biológica, debe sujetarse a criterios científicos y técnicos de sustentabilidad.Desde este punto de partida básico, yerra nuevamente la PGR. La Ley 9892 establece las normas jurídicas que posibilitarían la realización de ciertas actuaciones en la zona turístico del Parque Nacional Isla San Lucas. La tarea de emitir las licencias, concesiones, autorizar la dotación de agua, electricidad, telecomunicaciones, higiene y saneamiento, muelles, atracaderos, servicios de alimentación y vías de acceso, información y comunicación y, efectivamente poner en funcionamiento el parque, como siempre ha sido, le compete a la autoridad administrativa. Por sí misma la Ley 9892 no implica puesta en vigencia de tales actuaciones concretas. Además, siempre prevalecerán los criterios técnicos del último párrafo del citado artículo 9. Esta precisión que de entrada aparenta inocuidad, pone de manifiesto una confusión o errónea interpretación y que consiste básicamente en que, una cosa son los estudios científicos y técnicos, que debe tener a la vista la Asamblea Legislativa para tomar la decisión de si autoriza o no una posibilidad de acción; y otra cos (sic), son los estudios científicos y técnicos que deben motivar (componente de hecho y de derecho) el acto administrativo de otorgamiento de nuevas licencias o permisos, por ejemplo, o para habilitar un atracadero u obras similares, todas ellas actuaciones que ya de por si la administración pública competente actualmente tiene en uso y practica en diversos parques nacionales.Esto precisamente fue aclarado y respaldado por la Sala Constitucional en la consulta sobre el decreto legislativo 9909 (dictamen 2020-013837 de las dieciocho horas y treinta minutos del veintidós de julio del dos mil veinte), poniendo de manifiesto el error de interpretación que se venía sosteniendo respecto a sus criterios previos (…) Es decir, a la Asamblea Legislativa, le compete poner en manos de la autoridad administrativa el otorgamiento y realización final de actuaciones concretas, pero no tomar ella esas decisiones específicas en un texto de rango legal, y mucho menos sustentarlas técnicamente. La valoración respecto al grado de certeza técnica que debiera imperar para tomar la decisión de aperturar, por ejemplo, un servicio de alimentación o de un albergue para visitantes, queda a discreción de la autoridad administrativa y bajo su control en lo tocante a justificaciones técnicas.La decisión legislativa, manifiesta mediante la emisión de un decreto legislativo, dado su carácter general y abstracto, pasa por disponer sobre la creación del consabido parque nacional y sus características; y para ello constan en el expediente legislativo consultas y criterios de todos los órganos técnicos competentes, siendo el principal y más relevante el del Ministerio de Ambiente, que, dicho sea de paso, fue favorable al establecimiento del parque nacional. Finalmente, respecto a este punto, si el problema que halla la PGR se refiere exclusivamente a la Zona Turística, sencillamente, debemos limitarnos a subrayar que, ya desde la constitución del Refugio Nacional, existen planes de manejo (ver el anexo PLAN DE MANEJO DEL REFUGIO NACIONAL DE VIDA SILVESTRE ISLA SAN LUCAS del año 2012), relacionados con el turismo y el patrimonio histórico expresamente en la misma Zona Turística de la Ley cuestionada.Esta ha sido objeto de regulaciones especiales tendentes a su aprovechamiento para la visitación turística bajo la denominación de Zona de Uso Público (…) se solicita a la Sala Constitucional declarar sin lugar la acción de inconstitucionalidad tramitada bajo el expediente 21-005756-0007-CO”.
151. 152Mediante resolución de las 17:00 horas del 28 de mayo de 2021, se dispuso: “Por resolución de la Presidencia de esta Sala de las 13:42 horas del 17 de mayo de 2021 se previno a las personas que interpusieron su solicitud de coadyuvancia activa entre el 5 de abril de 2021 y el 5 de mayo de 2021 que, dentro del plazo de tres días, contado a partir del siguiente a la notificación de esa resolución y bajo apercibimiento de denegarle el trámite a su gestión en caso de incumplimiento, debían aportar su solicitud de coadyuvancia debidamente firmada y autenticada, así como cancelar y agregar el timbre del Colegio de Abogados. No obstante, se tiene que, únicamente, el gestionante JORGE ALBERTO SERENDERO HULSSNER, en su condición de apoderado general sin límite de suma de la Fundación FOR THE OCEANS (solicitud de coadyuvancia recibida en la Secretaría de la Sala a las 07:41 horas del 13 de abril de 2021), cumplió con la prevención mencionada, mediante escrito recibido en la Secretaría de esta Sala el 20 de mayo de 2021.De modo que, conforme a la constancia firmada por el Secretario de la Sala el 25 de mayo de 2021, se tiene que las demás personas que plantearon su solicitud de coadyuvancia, a saber: AARON JOSUÉ CHAVEZ MOLINA, ADRIÁN MORA MOLINA, ALBERTH SAÚL MORA MADRIGAL, ALBERTO DAVID LEITÓN GODÍNEZ, ALBERTO DE JESÚS CRUZ RAMÍREZ, ALESSIA BEATRIZ BARLETTA BOGANTES, ALLAN ARTURO SOLANO LEÓN, ÁLVARO MARTÍN MEDINA SANTANA, ANA LORENA DE LA TRINIDAD OCAMPO MARÍN, ANA VIRGINIA RODRÍGUEZ CASTRO, ANDERSSON MONTES CARRILLO, ANDRÉS MAURICIO ESPINACH BONILLA, ÁNGEL GABRIEL LOAIZA VARGAS, ANGIE MICHELL GÓMEZ LÓPEZ, ANLLEL RAQUEL CORDERO MAYORGA, ARIEL GRANDA SOLANO, ASOCIACIÓN SINDICAL DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA E INSTITUCIONES AFINES, BRANDON ANTONIO SÁNCHEZ CHAVARRÍA, BRANDY TAMARA JIMÉNEZ ARAYA, CARLOS ANDRÉS MATAMOROS DURÁN, CAROLINA AUXILIADORA BERROCAL PANIAGUA, CÉSAR EDUARDO SALGUERO HERNÁNDEZ, CHERLIN YANIXA URBINA ROSALES, CHRISTOPHER ANDRÉS SOLÍS CHAVARRÍA, CINTYA JIMÉNEZ MURILLO, CLARISSA LEÓN ALFARO, CYNTHIA LISSETH ALVARADO BRAVO, CYNTHIA MARÍA BONILLA ALFARO, DANIEL AGUILERA NÚÑEZ, DANIEL ALBERTO MORALES GUTIÉRREZ, DANIEL IVÁN MENA VARGAS, DANIELA AGÜERO ARAYA, DANIELA VARGAS LEITÓN, DANY ALBERTO VILLALOBOS, DAVID ALEJANDRO ARGÜELLO CÁCERES, DAVID ANTONIO MARÍN ZÚÑIGA, DAVID JOSUÉ RODRÍGUEZ PANIAGUA, DIANA HIDALGO ALFARO, DIANA VALERIA SALAZAR RODRÍGUEZ, DIEGO DE JESÚS CRUZ BERMÚDEZ, DOUGLAS SEBASTIÁN BRAVO RIVERA, EDITH NÚÑEZ CARBAJAL, EDUARDO JOAQUÍN CARRILLO JIMÉNEZ, EDUARDO JOSUÉ MORALES BERMÚDEZ, ELSA MARÍA DEL CARMEN PANIAGUA CHACÓN, EMILY ARLETH SEGURA MORA, EMMANUEL ARCE QUESADA, ESTEBAN CASTRO OVIEDO, ESTEBAN ROBERTO VALVERDE VÁSQUEZ, ESTEFANY MURILLO MADRIGAL, FABIAN HERRERA NÚÑEZ, FABIOLA GONZÁLEZ MARTÍNEZ, FEDERACION COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, FERNÁN ELIAS RODRÍGUEZ PORRAS, FERNÁN RODRÍGUEZ CASTRO, FIDEDIGNO CORRALES BARRANTES, FIORELLA VEGA MOTTA, FLORY ELIZONDO PERAZA, FLORY ROCÍO DE LOS A BERROCAL PANIAGUA, FRANCISCO JESÚS SAN LEE CAMPOS, FRANCISCO MARÍN SIERRA, GABRIEL ALESANDRO ESPINACH BONILLA, GABRIEL JESÚS BELLO ESCALONA, GABRIELA NÚÑEZ SALAZAR, GABRIELA RODRÍGUEZ CASTRO, GEISÓN JOSUÉ FUENTES ARGUEDAS, GRETTEL AGUILERA SALAZAR, GRETTEL SÁNCHEZ MONTEZUMA, GUILLERMO ALEXANDER RODRÍGUEZ CASTRO, HAZEL ARACELI OVIEDO GÓMEZ, HAZEL VANESSA JIMÉNEZ SELVA, HELLEN ADRIÁNA BARRANTES MURILLO, HILLARY VALERIA CUBERO ARAYA, HUGO ALBERTO GONZÁLEZ JIMÉNEZ, HUGO ALONSO ARIAS RAMÍREZ, IAN JOSUÉ CALVO JIMÉNEZ, ISAAC ANDRÉS ESPINOZA ALVARADO, ISABEL CRISTINA SOLÍS SOLANO, ISAURA FABIOLA MORA BARCENAS, IVÁN ALBERTO ROJAS ARCE, IVÁN JAFET MORA BRENES, JACKELINE VILLALOBOS FERNÁNDEZ, JAIRO ALBERTO SALAS SÁNCHEZ, JAVIER RODRÍGUEZ FONSECA, JEANNINA DE LOS ÁNGELES RODRÍGUEZ ELIZONDO, JEFFERSON ROBERTO CHAVES MONGE, JEILYN ELENA FLORES NAVARRO, JENIFER VARGAS MADRIGAL, JENNIFER VÁSQUEZ ARIAS, JERRY ALBERTO FERNÁNDEZ CARRIÓN, JEYMAR JAFET DIXON SOLANO, JOEL JAVIER CHAVEZ RIOS, JOHANNA REBECA MURILLO VIQUEZ, JOHEL ANDRE CHAVEZ MOLINA, JORGE ENRIQUE MORALES GÓMEZ, JORGE GERARDO JIMÉNEZ ARIAS, JOSE ALEJANDRO BOURRET MARÍN, JOSE ANDRÉS ORTÍZ UREÑA, JOSE ANTONIO GARITA VALVERDE, JOSE CARLOS ARAYA CAMPOS, JOSE DAVID CANALES MORALES, JOSE FABRICIO AVILA SANABRIA, JOSE MAURICIO BRENES FERNÁNDEZ, JOSE PABLO NÚÑEZ SALAZAR, JOSE ROBERTO MONGE MONGE, JOSELYN TATIANA MATTEI MORA, JOSHUA GONZÁLEZ ALFARO, JOSUÉ DAVID GONZÁLEZ PRENDAS, JOSYAH BARAHONA PERÉZ, JUAN ALFONSO RAMÍREZ RUIZ, JUAN MANUEL MORALES PRADO, JUAN RAFAEL DE LA TRINIDAD ORTÍZ CARRIÓN, KACEY GABRIEL ALVARADO JIMÉNEZ, KARLA VALESKA SOLÍS SALAZAR, KATHERINE MARÍA RODRÍGUEZ ZÚÑIGA, KATHLEEN SOTO FONSECA, KATTIA DE LOS ÁNGELES MARÍN GONZÁLEZ, KEILYN INDIRA CALVO CAMPOS, KEILYN LETICIA LÓPEZ LÓPEZ, KENDRI YURLEY CHAVARRÍA MENA, KENDRY VINICIO JIMÉNEZ HERNÁNDEZ, KERLYN DANIELA JIMÉNEZ ARAYA, KEVIN RICARDO NÚÑEZ JAIMES, KEYTIN MARÍANNE ZAPATA CORTÉS, KEYTLIN MARIELL GÓMEZ ZÚÑIGA, LARISSA SOFÍA CHAVEZ MOLINA, LAURA DE LOS ÁNGELES BARRIENTOS CALDERÓN, LAURA SUSANA PORRAS ROJAS, LAURA VANESSA ROJAS BERROCAL, LEIDY CRISTINA JIMÉNEZ ELIZONDO, LENNI MARÍA JIMÉNEZ ELIZONDO, LEÓNARDO ENRIQUE NACH VIVAS, LEYDI CRUZ SEQUEIRA OBANDO, LILLIAM DANIELA MORA MONTOYA, LISBETH DANIELA SÁNCHEZ RODRÍGUEZ, LUIS DIEGO BUSTOS ARGUEDAS, LUIS GUILLERMO CANTILLANO MONGE, LUIS GUILLERMO SALAZAR HERNÁNDEZ, MADELINE GARITA MATAMOROS, MANUEL ALBERTO CERDAS SALAZAR, MANUEL HERRERRA CORRALES, MARCELA DE LOS ÁNGELES MARÍN GONZÁLEZ, MARCELA JIMÉNEZ MURILLO, MARCELO ANTONIO ROA ROSALES, MARCO ANTONIO CHAVARRÍA SÁNCHEZ, MARCOS VINICIO AGÜERO HERNÁNDEZ, MARGARITA DEL SOCORRO PRENDAS SALAZAR, MARGARITA ROSA DEL CARMEN RODRÍGUEZ CASTRO, MARÍA ÁNGELA DEL CARMEN UREÑA JIMÉNEZ, MARÍA DANIELA AGUILAR CHAVARRÍA, MARÍA DEL ROCÍO JIMÉNEZ CHACÓN, MARÍA FERNÁNDA CERDAS SOLÍS, MARÍA FERNÁNDA LEITÓN QUESADA, MARÍA ISABEL ALFARO CHAVARRÍA, MARÍA ISABEL BONILLA ALFARO, MARÍA JESÚS GONZÁLEZ JIMÉNEZ, MARÍA JESÚS VIQUEZ CAMACHO, MARÍA LEÓNOR URRUTIA RUIZ, MARÍA MARGARITA GUZMÁN VARGAS, MARIBEL DE JESÚS MARÍN MIRANDA, MARICEL DE GERARDO MADRIGAL HERNÁNDEZ, MARIELA DEL MILAGRO BRENES OROZCO, MARIO ANDRÉS BOZA LORIA, MARIO CANTILLANO GAMBOA, MARIO MINOR MONGE MONGE, MARIPAZ ESPINACH BONILLA, MARLENE JIMÉNEZ MORA, MARLENE MARITZA VALVERDE CHACÓN, MARYETH CAROLINA MÉNDEZ CONTRERAS, MAURICIO ESPINACH MONTERO, MAYELA RIVERA RODRÍGUEZ, MAYKE ALBERTO MONGE VARGAS, MELANIE PAMELA QUIRÓS PORRAS, MELANY TATIANA GAMBOA MATA, MICHELLE NAYERY CASTRO AGUILAR, MICHELLE ULLOA MARTÍNEZ, MONSERRAT MARÍA RAMÍREZ MADRIGAL, NATALIA CORDERO MURILLO, NATASHA MARÍA SOLÍS SOLORZANO, NIKOLE ALEXANDRA SEGURA MORA, NOE GUILLERMO RIVERA VALVERDE, NURIA DEL CARMEN ARAYA CRUZ, OLGA GONZÁLEZ TORRES, OLGA MAYELA SALAZAR BONILLA, OSCAR BARBOZA LIZANO, PAOLA SALAZAR AGUILERA, PATRICIA DEL PILAR VILLALOBOS ARIAS, RACHELL VALERIA ROJAS SOLANO, RAFAEL ÁNGEL BERROCAL SOTO, RANDALL RODRÍGUEZ RODRÍGUEZ, RICARDO JESÚS GONZÁLEZ AVILA, ROBERTO MIGUEL MOLINA UGALDE, RUTH JIMÉNEZ MORA, SAÚL MATARRITA ALVARADO, SEBASTIÁN JOB CASTRO ROJAS, SEBASTIÁN MORALES PERÉZ, SERGIO ANTONIO GONZÁLEZ JIMÉNEZ, SERGIO GONZÁLEZ AVILA, SHARON CAMILA ALFARO NÚÑEZ, SHARON PRISCILLA BLANDON RUIZ, SHAZAD ROLANDO FUENTES CHAVARRÍA, SHEINER MAURICIO UMAÑA ERAZO, SHIRLEY GABRIELA MÉNDEZ CORDONERO, SHIRLEY MARÍA MARTÍNEZ MARTÍNEZ, SIAM JOSUÉ HERRERA ARIAS, SILVIA ELENA CEDEÑO ULATE, SOFÍA CORDERO CORDERO, STACY YULIANA BARRANTES GONZÁLEZ, STEPFANIE SUSANA BRENES SOLANO, STEPHANIE FABIOLA ARRIETA ANGULO, STEPHANIE PAOLA MEDINA RODRÍGUEZ, STEVEN ALBERTO JUAREZ SEGURA, STEVEN GONZÁLEZ SALAZAR, STEVEN JOSE LOZANO RAITH, SUSANA MARCELA ROJAS BERROCAL, TAMARA SÁNCHEZ DI LUCA, TATIANA DE LOS ÁNGELES CANTILLANO RODRÍGUEZ, TATIANA VARGAS GONZÁLEZ, TELMA CLARIBEL MOLINA NÚÑEZ, TROY GABRIEL VARGAS ORTÍZ, VALERIA BEATRIZ CORTÉS BRENES, VALERIA CALDERÓN MORA, VALERIA MARÍN CALDERÓN, VALERIA SÁNCHEZ DI LUCA, VÍCTOR HUGO DE LA TRINIDAD CANTILLANO MONGE, VINICIO MARÍN GONZÁLEZ, VIVIANA MARÍA MORA MADRIGAL, WALTER ANDRÉS URRUTIA RUIZ, WALTER JESÚS DE LA TRINIDAD RODRÍGUEZ RODRÍGUEZ, WENDY GONZÁLEZ SALAZAR, WENDY MARÍA RIVERA RAMÍREZ, WILLIAM SALAZAR CARRANZA, YAMILETH ELIZONDO PERAZA, YANELLY DE LOS ÁNGELES ABARCA ABARCA, YANORY RODRÍGUEZ CASTRO, YARIEL MORA CHAVARRÍA, YENDRY PAMELA ESTRADA RIVERA, YENDRY PAOLA CALDERÓN LEÓN, YOLANDA GERARDINA MADRIGAL HERNÁNDEZ y YULISSA OROZCO ALFARO; omitieron cumplir con lo prevenido dentro del plazo establecido.En consecuencia; se resuelve: El artículo 83 de la Ley de Jurisdicción Constitucional señala que en los quince días posteriores a la primera publicación del aviso a que alude el párrafo segundo del artículo 81, las partes que figuren en los asuntos pendientes a la fecha de la interposición de la acción, o aquellos con interés legítimo, podrán apersonarse dentro de esta (sic), a fin de coadyuvar en las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar, en su caso, los motivos de inconstitucionalidad en relación con el asunto que les interesa. En el caso concreto, se constata que todas las solicitudes de coadyuvancia fueron interpuestas entre el 5 de abril de 2021 y el 5 de mayo de 2021, dentro del plazo de quince días posteriores a la primera publicación del aviso el 13 de abril de 2021. Sin embargo, dado que no cumplieron con lo prevenido por esta Sala en la resolución de las 13:42 horas del 17 de mayo de 2021, lo procedente es rechazar las solicitudes de coadyuvancias interpuestas ante este Tribunal entre el 5 de abril de 2021 y el 5 de mayo de 2021, a excepción de la interpuesta por JORGE ALBERTO SERENDERO HULSSNER, en su condición de apoderado general sin límite de suma de la FUNDACIÓN FOR THE OCEANS, quien el 20 de mayo de 2021 cumplió con lo prevenido, por lo que se tiene como coadyuvante activo.Cabe aclarar que, si bien, por escrito recibido en la Secretaría de esta Sala a las 14:54 horas del 16 de abril de 2021, el gestionante ROBERTO MIGUEL MOLINA UGALDE, cédula n° 5-0195-0151, representante del SINDICATO DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA (SITRAMINAE), presentó su gestión de coadyuvancia firmada y autenticada, lo cierto es que no aportó el timbre del Colegio de Abogados conforme a lo prevenido. De igual forma, en el caso de la solicitud de coadyuvancia recibida en la Secretaría de la Sala a las 13:53 horas del 22 de abril de 2021, interpuesta por DANI ALBERTO VILLALOBOS VILLALOBOS, cédula de identidad n° 2-0643-0273, en su condición de representante de la FEDERACIÓN COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, quien también incumplió con lo prevenido, en el sentido de presentar su gestión debidamente autenticada y con el timbre del Colegio de Abogados. Razón por la cual sus gestiones son igualmente denegadas.En cuanto al coadyuvante activo JORGE ALBERTO SERENDERO HULSSNER, en su condición de apoderado general sin límite de suma de la FUNDACIÓN FOR THE OCEANS, se advierte a este último que -en cuanto a los efectos de la coadyuvancia-, al no ser el coadyuvante parte principal del proceso, no resultará directamente perjudicada o beneficiada por la sentencia, es decir, la eficacia de la sentencia no alcanza al coadyuvante de manera directa e inmediata, ni le afecta cosa juzgada, no le alcanzan, tampoco, los efectos inmediatos de ejecución de la sentencia, pues a través de la coadyuvancia no se podrá obligar a la autoridad jurisdiccional a dictar una resolución a su favor, por no haber sido parte principal en el proceso. Lo que si puede afectarle, pero no por su condición de coadyuvante, sino como a cualquiera, es el efecto erga omnes del pronunciamiento. La sentencia en materia constitucional, no beneficia particularmente a nadie, ni siquiera al actor; es en el juicio previo donde esto puede ser reconocido.De otra parte, se tienen por contestadas las audiencias conferidas a la Procuraduría General de la República, al presidente de la Asamblea Legislativa, a la ministra de Cultura y Juventud y al presidente Ejecutivo del Instituto Costarricense de Turismo, en la resolución de las 07:52 horas del 26 de marzo de 2021. Asimismo, se tiene por no contestada, la audiencia conferida en la misma resolución a la ministra de Ambiente y Energía y a la directora Ejecutiva del Sistema Nacional de Áreas de Conservación, en virtud de que no consta en el Sistema de Gestión registro de documento alguno presentado por estas a fin de contestar la audiencia otorgada. Asimismo, se tiene que por resolución n° 2021-008520 de las 09:15 horas del 28 de abril de 2021, se tuvo por acumulada a esta acción la n° 21-006852-0007-CO, dentro de la cual el accionante GUSTAVO FLORES YZAGUIRRE, cédula de identidad n° 107060843, igualmente impugna la Ley n° 9892 del 24 de agosto de 2020, denominada Ley de Creación del Parque Nacional Isla San Lucas, por estimarla contraria al artículo 50 de la Constitución Política, en el mismo sentido que los alegatos esgrimidos en esta acción n° 21-0005756-0007-CO. Listos los autos, se turna la acción de inconstitucionalidad al magistrado Paul Rueda Leal, a quien por turno corresponde el estudio de fondo de la misma. Notifíquese”.
152. 153En escrito incorporado al expediente digital el 14 de noviembre de 2022, Susana Rojas Berrocal, cédula de identidad 110850879, indicó: “El pasado jueves 10 de noviembre ingresé a mi usuario del Poder Judicial para verificar la situación de un Proceso de Familia que tengo activo, siendo que revisando mis expedientes me topo con la sorpresa de que figuro como coadyuvante en la Acción de Inconstitucionalidad tramitada bajo el expediente 21-005756-0007-CO, coincidiendo totalmente los datos de mi número de cédula y nombre completo, lo cual me genera una gran confusión porque yo no tengo absolutamente nada que ver con el presente asunto, no he presentado ningún escrito ni he participado en nada que tenga que ver con esta Acción. Quisiera dejar claro ante la Honorable Sala Constitucional que mi persona no ha gestionado absolutamente nada que tenga que ver con el presente proceso y solicito respetuosamente se me indique si esto se debe a una confusión o si por el contrario estoy siendo víctima de alguna suplantación de identidad y quién me propuso como coadyuvante”.
153. 154Por resolución del magistrado instructor de las 13:45 horas del 15 de noviembre de 2022 se dispuso: “Por escrito agregado al expediente electrónico el 14 de noviembre de 2022, Susana Rojas Berrocal señala que no ha gestionado nada relacionado con este proceso; por ese motivo, solicita que se aclare por qué figura como coadyuvante y se le indique quién la propuso como tal. Al respecto, se informa a la interesada que el escrito de coadyuvancia fue recibido en la Sala por correo electrónico del 27 de abril de 2021, agregado al expediente digital el 4 de mayo de 2021. El mencionado escrito fue remitido por Tatiana Cantillano Rodríguez y adjuntaba una lista de firmas que incluye -en apariencia- la firma y número de cédula de Susana Rojas Berrocal. De persistir su disconformidad, podrá la interesada requerir expresamente su exclusión del expediente. Asimismo, se le indica que, en caso de que considere que hubo suplantación de identidad, deberá acudir a las instancias respectivas a hacer valer sus derechos, si a bien lo tiene. Notifíquese a la interesada”.
154. 155Por escrito incorporado al expediente digital el 27 de enero de 2023, Susana Rojas Berrocal, cédula de identidad 110850879, expone: “En atención a lo indicado en la resolución de las trece horas cuarenta y cinco minutos del quince de noviembre de dos mil veintidós, es mi deseo externar mi solicitud de exclusión del caso de marras y aclarar que no tengo nada que ver en el mismo”.
155. 156Mediante resolución del magistrado instructor de las 8:31 horas del 17 de marzo de 2023, se confirió audiencia al alcalde de Puntarenas y al director de la Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza.
156. 157Por escrito incorporado al expediente digital el 24 de marzo de 2023, José Francisco Coto Meza, en su condición de apoderado general judicial del Instituto Costarricense de Turismo, pide que se solicite a la Cámara de Turismo de Puntarenas pronunciarse sobre los alegatos expuestos por los accionantes.
157. 158Por escrito incorporado al expediente digital el 28 de marzo de 2023, Susana Rojas Berrocal, cédula de identidad 110850879, expone: “En atención a lo indicado en la resolución de las trece horas cuarenta y cinco minutos del quince de noviembre de dos mil veintidós, es mi deseo externar mi solicitud de exclusión del caso de marras y aclarar que no tengo nada que ver en el mismo”.
158. 159Por escrito incorporado al expediente digital el 31 de marzo de 2023, se apersona Úrsula Parrilla Artiuguina, en su condición de directora regional de la Unión Internacional para la Conservación de la Naturaleza, para México, América Central y el Caribe. Expone: “Me dirijo en seguimiento a la acción de inconstitucionalidad en referencia, mediante la cual se solicita a la UICN pronunciamiento sobre los alegatos expuestos por los accionantes. Al respecto y atendiendo la solicitud de la Sala Constitucional, la UICN remite sus contribuciones para dar respuesta a dichos alegatos, que se encuentran en el Anexo 1 de esta comunicación. Así mismo, quisiera reiterar nuestra disposición para atender cualquier solicitud adicional de información que pueda ser requerida en el marco de este proceso y para ello se ha designado al Dr. José Courrau, experto temático en Áreas Protegidas destacado en esta oficina regional y que puede ser contactado en la siguiente dirección electrónica”.En el anexo referido se consignó: “Anexo 1- CONTRIBUCIONES DE LA UNION INTERNACIONAL PARA LA CONSERVACION DE LA NATURALEZA (UICN) A LA ACCIÓN DE INCONSTITUCIONALIDAD EXPEDIENTE # 21-005756-0007-CO El presente documento responde a la consulta presentada por la Sala Constitucional de Costa Rica en el expediente 21-005756-0007-CO. Los criterios aportados por UICN son meramente técnicos y buscan solamente contribuir a la discusión del caso en mención, sin perjuicio de ninguna de las partes. I. Sobre la UICN Creada en 1948, la UICN es la red ambiental más grande y diversa del mundo, y aprovecha el conocimiento, los recursos y el alcance de nuestras más de 1400 organizaciones miembros y 15 000 expertos. Esta diversidad y experiencia convierte a la UICN en la autoridad mundial sobre el estado del mundo natural y las medidas necesarias para salvaguardarlo. Nuestra amplia membresía también significa que podemos incubar ideas y somos un repositorio confiable de mejores prácticas, herramientas y estándares internacionales.Brindamos un espacio neutral en el que los gobiernos, las ONG, los científicos, las empresas, las comunidades locales, las organizaciones de los pueblos indígenas y otros pueden trabajar juntos para resolver los desafíos ambientales y lograr el desarrollo sostenible. Trabajando con muchos socios y simpatizantes, la UICN implementa una amplia y diversa cartera de proyectos de conservación en todo el mundo. Estos proyectos combinan la ciencia más reciente con el conocimiento tradicional de las comunidades locales para trabajar para revertir la pérdida de hábitat, restaurar ecosistemas y mejorar el bienestar de las personas. La visión de la UICN es “Un mundo justo que valore y conserve la naturaleza” y la misión es “Influir, alentar y ayudar a las sociedades a conservar la integridad y diversidad de la naturaleza y asegurar que cualquier uso de los recursos naturales sea equitativo y ecológicamente sostenible.” II.Aspectos Generales sobre Áreas Protegidas Las áreas protegidas continúan siendo la más exitosa opción para conservación in situ en el mundo. Las mismas forman parte integral de todos los compromisos nacionales internacionales de conservación de biodiversidad y buscan preservar muestras representativas y funcionales de los sistemas naturales terrestres y marinos y las especies del mundo, así como mantener importantes procesos ecológicos para las poblaciones humanas. Adicionalmente, contienen importantes recursos culturales y pueden ser sitios importantes para la adaptación a los efectos del cambio climático que se avecinan. Históricamente las áreas protegidas han sido establecidas por gobiernos, pero más recientemente se ha reconocido la importancia de áreas que han sido protegidas y manejadas sosteniblemente por parte de comunidades, pueblos indígenas y personas u organizaciones privadas.El establecimiento de las áreas protegidas es una manifestación del compromiso de países y la sociedad con el presente y el futuro con la conservación de biodiversidad y servicios ecosistémicos. Este compromiso manifiesta la necesidad de mantener especies, ecosistemas y procesos (y servicios) que son esenciales para la sobrevivencia humana y que, además, le generan ingresos económicos que pueden ser sostenibles y distribuidos de una manera justa y equitativa. La revisión y asignación de objetivos de manejo con fines de conservación de biodiversidad debe realizarse desde una perspectiva sistémica. Esto implica que los componentes y sus interacciones deben considerarse en la asignación de los objetivos en áreas protegidas individuales. De acuerdo con Groves (2003) y Dudley (2008) un sistema de conservación de biodiversidad debería de cumplir con las siguientes características: Representatividad, totalidad y equilibrio: incluyendo ejemplos de la máxima calidad de toda la gama de tipos de medio ambiente de un país; incluye la medida en que las áreas protegidas proporcionan una muestra equilibrada de los tipos de entornos que pretenden representar.Adecuación: integridad, suficiencia de extensión espacial y disposición de las áreas que contribuyen al sistema, junto con una gestión eficaz, para respaldar la viabilidad de los procesos medioambientales y/o especies, poblaciones y comunidades que conforman la biodiversidad del país. Coherencia y complementariedad: contribución positiva de cada área protegida al conjunto de objetivos de conservación y desarrollo sostenible definidos por el país. Consistencia: aplicación de los objetivos, políticas y clasificaciones de gestión en condiciones comparables de forma estandarizada, de manera que quede claro para todos el propósito que persigue cada área protegida en el marco del sistema y se maximicen las posibilidades de que su gestión y uso contribuyan a los objetivos del sistema. Rentabilidad, eficiencia y equidad: equilibrio adecuado entre los costes y los beneficios, y la debida equidad en su distribución; incluye la eficacia: el número y la superficie mínimos de áreas protegidas necesarios para alcanzar los objetivos del sistema.III. Aspectos Generales sobre Categorías de Manejo de Áreas Protegidas El contar con un sistema válido que describa responsablemente el proceso para asignar, revisar, evaluar las categorías de manejo que resumen y guían el manejo de las valiosas áreas protegidas. Estas categorías ayudan a organizar los tipos de uso permitidos en estas áreas. Las diferencias manifiestas entre las categorías de manejo ponen en evidencia que la conservación de biodiversidad puede ser alcanzada por diferentes modelos de gestión. La UICN ha sido la organización responsable por la creación, análisis y actualización del sistema internacional de categorías de manejo de áreas protegidas. Esta herramienta técnica ha sido reconocida mundialmente como el punto de referencia para organizar categorías de manejo en los países. Desde la primera versión de las categorías en 1974 hasta la nueva edición de 2008, mucho se ha aprendido sobre las implicaciones para la gestión y el futuro de las áreas, y su relación con los arreglos de gobernanza que definen la toma de decisiones en las áreas protegidas.Algunas razones para aplicar un sistema de categorías de manejo de áreas protegidas: • Consolidar un sistema nacional de áreas protegidas que refleja un rango de objetivos de manejo y tipos de gobernanza. • Planificación anual para asignar personal y presupuesto de acuerdo con un proceso directamente relacionado con las categorías de manejo. • Elevar el perfil de las áreas protegidas como base crítica para un desarrollo más sostenible. • Integrar las áreas protegidas en esquemas de ordenamiento territorial de gran escala o promover tal esquema. • Salvaguardar las áreas protegidas contra el desarrollo ambientalmente irresponsable y sus impactos. • Mejorar la colecta de datos para mejorar el conocimiento sobre el sistema de áreas protegidas y capturar información más precisa sobre las categorías y los tipos de gobernanza para medir avances hacia metas de compromisos nacionales e internacionales. • Mejorar el manejo específico de la categoría a nivel de sitio. • Comunicar objetivos de manejo más transparentes a los diversos grupos de interés. • Destacar el sistema nacional de categorías al esforzarse por aplicarlo de acuerdo a ley vigente Un sistema de categorías de manejo para las áreas protegidas de un país representa un abordaje responsable para organizar la gestión y la gobernanza de estas áreas.El enfoque metodológico de esta propuesta se basa en las “Directrices para la Aplicación de las Categorías de Gestión de Áreas Protegidas” de 2008, desarrolladas por la UICN. Las directrices de 2008 recomiendan que las iniciativas nacionales para asignar categorías de manejo deben considerar, desarrollar e implementar un proceso para asignar/revisar categorías de manejo en un país. También agregan que la institución nacional de áreas protegidas de contar con un proceso inicial para revisar y asignar categorías de manejo. El proceso propuesto por las directrices se ilustra a continuación: Identificar los objetivos de manejo ↓ Evaluar si los sitios cumplen con la definición de UICN de un área protegida. Aquí se considera de manera amplia el paisaje del país: tierras privadas, comunales, indígenas, vacíos de conservación, zonas de relacionamiento ↓ De ser así, documentar las siguientes características – estatus legal, objetivos de manejo y la justificación para el estatus de las áreas protegidas (objetos focales de biodiversidad y culturales, servicios ecosistémicos).Aquí se incorporan aspectos científicos claves tales como: conectividad, condición de los objetos de manejo, impacto del cambio climático sobre las áreas protegidas (en especial adaptación), entre otros ↓ Usar la información para proponer una categoría de manejo y gobernanza para el área protegida, basada en las directrices de la IUCN. Deben documentarse las implicaciones de las categorías de las áreas protegidas para el presente y futuro del país y las capacidades institucionales, humanas requeridas para llevar a cabo el manejo. Discutir el papel del área protegida en referencia al marco legal nacional, las directrices institucionales nacionales para las áreas protegidas y los referentes técnicos internacionales de manejo de áreas protegidas. ↓ Llevar a cabo un proceso de consulta durante todo el proceso para acordar la categoría propuesta ↓ El gobierno toma la decisión final sobre la categoría ↓ Monitorear, evaluar y adaptar el manejo de las áreas protegidas y sus categorías de manejo.Usar la información para reportar sobre el manejo de las áreas protegidas (por ejemplo, a la CDB) IV. Contribuciones a los puntos de la acción de inconstitucionalidad La información proveída por UICN en los siguientes puntos, proviene principalmente de las siguientes fuentes: Dudley, N. (Editor) (2008). Directrices para la aplicación de las categorías de gestión de áreas protegidas. Gland, Suiza: UICN. x + 96pp. SINAC y PNUD. (2014). Informe de consultoría "Recategorización de las Áreas Silvestres Protegidas" del proyecto Removiendo Barreras para la Sostenibilidad. UICN y CATIE. San José, Costa Rica. 268 pp. Worboys, G. L., M. Lockwood, A. Kothari, S. Feary and I. Pulsford (Editors) (2015). Protected Area Governance and Management. ANU Press, Canberra, Australia. 966 pp. Comentarios generales sobre el caso La Ley 9892 presenta un fuerte enfoque hacia el uso turístico del área silvestre protegida y un menor enfoque hacia la conservación de biodiversidad y servicios ecosistémicos.Adicionalmente, presenta un interés en preservar las construcciones y otros rasgos históricos del sitio. Por otra parte, la Ley 9892 incorpora aspectos de zonificación y definición de usos permitidos dentro de estas zonas del área silvestre protegida. De acuerdo con la buena práctica en manejo de áreas silvestres protegidas, tanto la zonificación como la determinación de usos permitidos son tareas pertinentes al plan de manejo del área y no a una ley. Los sistemas naturales son dinámicos y su planificación requiere de flexibilidad para ajustarse a la entropía. Al dejar plasmadas en una ley las zonas y sus usos trae como consecuencia una “inmovilización” del manejo que solo puede corregirse con una nueva ley. 1. Reducción del área silvestre protegida sin justificación Después de revisar los puntos señalados por los demandantes, podemos indicar que el tamaño del área protegida fue reducido por la Ley 9892 del 24 de agosto de 2020, al reducir el límite marino original de hasta 6 metros de profundidad que cubría el Refugio de Vida Silvestres en marea baja por el de hasta 3 metros de profundidad (sin indicación de marea alta o baja).UICN recomienda realizar un análisis cartográfico para determinar con precisión la reducción del tamaño del área silvestre protegida, en su espacio marino. A la vez, se recomienda hacer una valoración de la riqueza costeromarina con el fin de determinar si con el cambio de 6 metros a 3 metros, quedan desprotegidos especies y ecosistemas valiosos para proteger. 2. Cambio de categoría de manejo y la inclusión de una zona turística sin estudios Evidentemente el área silvestre protegida sufrió un cambio de categoría de manejo de Refugio de Vida Silvestre a Parque Nacional. L asignación de la categoría de manejo de un área silvestre protegida debe ser producto de un análisis que considere los objetivos de creación del área, los valores naturales, culturales y otros del área, la condición actual de estos valores, los usos que se podrían contemplar, entre otros. Dicha valoración debe llevarse a cabo en conjunto con los grupos de interés, autoridades y comunidades locales.De acuerdo con el Reglamento de la Ley de Biodiversidad, artículos 71 y 72, cuando se llevan a cabo modificaciones o cambios en la categoría de manejo de las áreas silvestres protegidas debe elaborarse un informe técnico detallado y en el caso que se eleve el nivel de la categoría de manejo, deben explicarse las razones concretas que justifiquen la decisión (…) Para la UICN, organización que desarrolló las categorías de manejo de áreas protegidas a nivel mundial, el elevar un área silvestre protegida de una categoría de manejo menos restrictiva a otra más restrictiva se lleva a cabo con el fin de hacer más evidente la importancia de proteger los valores que el área silvestre protegida contiene. Sin embargo, en el caso del Parque Nacional San Lucas, con el cambio de categoría se denota un interés de desarrollar el uso turístico más que de fortalecer la protección de valores naturales y culturales del sitio.Adicionalmente, la falta de estudios y justificaciones técnicas para el cambio de categoría y para la inserción de actividades turísticas dentro del sitio. Como se puede ver en cuadro de abajo, los usos permitidos en un Refugio de Vida Silvestre y un Parque Nacional difieren en que en el refugio se permite actividades de manejo y uso directo de la biodiversidad, construcción de obra pública e infraestructura turística y recreativa. Estas actividades en el parque nacional no son permitidas. Mientras tanto, en el parque nacional se permiten las concesiones y permisos de uso, en el refugio no se permiten. (…) Sin embargo, a pesar de lo indicado en los dos tipos de categorías de manejo, de acuerdo con la Ley Forestal de Costa Rica, los bosques son Patrimonio Natural del Estado (PNE). Este concepto de la ley incluye a las áreas silvestres protegidas y en su artículo 18 y 18 bis define los usos permitidos en las mismas: Investigación, capacitación, ecoturismo y actividades necesarias para aprovechamiento de agua.Por lo tanto, lo expresado en ese artículo actúa como una macro categoría de manejo que hace a todas las áreas silvestres protegidas iguales en función de los usos permitidos. El PNE se sobrepone sobre lo expresado por las categorías de manejo. UICN recomienda que esta situación sea resuelta por el estado costarricense para evitar confusiones y, a la vez, permitir que las categorías de manejo puedan aplicarse en todo su alcance. UICN también recomienda revisar en la Ley 9892, las justificaciones técnicas para el cambio de categoría. De igual manera, se recomienda que tanto la zonificación como los usos permitidos en las mismas sean resueltas en el proceso de desarrollo y aprobación de un plan de manejo como el instrumento técnico primordial para el manejo de áreas silvestres protegidas. 3. Fines comerciales disfrazados de fines sostenibles en la fragmentación del área silvestre protegida Dentro de los usos permitidos en los parques nacionales, de acuerdo con la legislación costarricense, se encuentran las concesiones de servicios no esenciales y permisos de uso.No hay indicación sobre las actividades con fines comerciales dentro del área. En las buenas prácticas de parques nacionales se reconocen las concesiones de servicios no esenciales, siempre y cuando no alteren ni comprometan las condiciones de los valores del sitio. Adicionalmente, como ya se indicó previamente en puntos anteriores, la zonificación y usos permitidos dentro del área silvestres protegida deben ser tratados en un plan de manejo del sitio y no en su ley de creación. Vale recalcar la importancia de contar en el plan de manejo con las justificaciones técnicas para la zonificación y los usos permitidos. Como UICN no podemos emitir criterio sobre la implicación que los fines comerciales se están disfrazando como sostenibles pero que fragmentan el área silvestre protegida. 4. Sobre la Junta Directiva que Administrará el Parque Como UICN no tenemos criterios técnicos para aportar a este punto.Este punto debe tratarse de acuerdo con la legislación nacional concerniente a la gobernanza de áreas silvestres protegidas. 5. Incorporación de Oficiales de Seguridad Privada en un Parque Nacional Como UICN no tenemos criterios técnicos para aportar a este punto. Este punto debe tratarse de acuerdo con la legislación nacional concerniente al control y vigilancia de áreas silvestres protegidas. Sin embargo, queremos llamar la atención desde el punto de vista de salvaguardas ambientales y sociales, específicamente los riesgos sobre los derechos, los medios de subsistencia y el bienestar de las comunidades vecinas. El SINAC, como institución garante de las áreas protegidas del país, tiene mucha experiencia en las actividades de control y vigilancia y provee la necesaria capacitación de su personal para que desempeñe estas actividades dentro de lo que permite la ley. Al incorporar oficiales de seguridad privada para que desempeñen actividades de control y vigilancia dentro del área silvestre protegida, sin la debida capacitación ni la cobertura institucional del SINAC, puede prestarse a riesgos contra las salvaguardas de los derechos, los medios de subsistencia y el bienestar de las comunidades vecinas. 6.Sobre las Concesiones y la Autorización para Hacer Muelles y Atracaderos en Parques Nacionales. Tal y como se ha mencionado en los puntos anteriores, no corresponde a una ley sino a un plan de manejo, fundamentado en información científica y técnica y desarrollado de forma participativa con los grupos de interés, el determinar zonas y usos permitidos en un áreas silvestre (sic) protegida. Adicionalmente, la Ley de Biodiversidad permite las concesiones y permisos de uso en parques nacionales, a pesar de que el artículo 18 y 18 bis de la Ley Forestal, define los cuatro tipos de uso para todo el Patrimonio Natural del Estado, que incluye a las áreas protegidas y que se sobrepone sobre las categorías de manejo existentes. De cualquier forma, la Contraloría General de la República en 2003 ya expresó un criterio que no reconoce los muelles y atracaderos turísticos como concesiones posibles dentro de las áreas silvestres protegidas. 7.Financiamiento Incierto Como UICN no tenemos criterios técnicos para aportar a este punto. Este punto debe tratarse de acuerdo con la legislación nacional concerniente al financiamiento de las áreas silvestres protegidas”.
159. 160Mediante resolución de la Presidencia de la Sala de las 14:08 horas del 12 de abril de 2023, se dispuso “De conformidad con lo dispuesto en los artículos 10 y 85 de la Ley de la Jurisdicción Constitucional, se convoca a vista oral a ANAIS VILLALOBOS KONG, ÁLVARO SAGOT RODRÍGUEZ y GUSTAVO FLORES YZAGUIRRE, en su condición de accionantes; al procurador General de la República, al presidente de la Asamblea Legislativa, a la ministra de Cultura y Juventud, a la ministra de Ambiente y Energía, a la directora ejecutiva del Sistema Nacional de Áreas de Conservación, al presidente ejecutivo del Instituto Costarricense de Turismo, al alcalde de Puntarenas y a la directora de la Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza en su condición de informantes; y a Jorge Alberto Serendero Hülssner, en su condición de coadyuvante; todos en la acción de inconstitucionalidad que se tramita en el expediente nro. 21-005756-0007-CO.1) Sobre la fecha, hora y modalidad de la vista: La audiencia se programa para las 8:30 horas del 4 de mayo de 2023 y se llevará a cabo de forma presencial en la Sala de Vistas ubicada en el segundo piso del Edificio de la Corte Suprema de Justicia, Barrio González Lahmann, San José.2) Sobre la asistencia: Cada uno de los intervinientes podrá participar en la audiencia por sí mismo, o bien, hacerse acompañar de un profesional en Derecho.3) Sobre la acreditación de las partes: En el plazo de TRES DÍAS, contado a partir del recibido de esta notificación, las partes accionantes, informantes, coadyuvantes y demás deberán informar los nombres y números de cédula de quienes comparecerán ante este Tribunal.4) Sobre requerimientos técnicos: a efectos de tomar las previsiones correspondientes, las partes accionantes, informantes, coadyuvantes y demás deberán informar sobre la utilización de equipo e implementos técnicos durante su intervención, tales como presentaciones informáticas, vídeos o filminas; con el fin de evitar inconvenientes o imprevistos, los cuales deberán comunicarse a la Sala en el plazo de las TRES DÍAS, contado a partir del recibido de esta notificación. Además, se aclara que el día de la vista las partes accionantes, informantes, coadyuvantes y demás deberán apersonarse TREINTA MINUTOS antes de la hora señalada con sus respectivos equipos electrónicos y cables conectores, en caso de que se requiera la utilización de equipo para sus presentaciones.5) Sobre el desarrollo de la Vista: se determinan los siguientes aspectos procedimentales: A) La Sala dará inicio a la diligencia otorgando por un máximo de quince minutos el uso de la palabra a la parte accionante, para que dentro de ese tiempo presente los argumentos jurídicos y técnicos del expediente, ajustándose al objeto concreto de su reclamación y evitando incurrir en aspectos ajenos a su acción. Si por alguna razón se incorporase tardíamente a la diligencia, deberá tomar la misma a partir del momento en que la vista se encuentre, lo cual determina que, si ha estado ausente al momento de hacer uso de la palabra, no podrá presentar posteriormente sus argumentos, salvo mejor criterio del Tribunal. B) Finalizada la presentación de la parte accionante, se dará el uso de la palabra al procurador General de la República, al presidente de la Asamblea Legislativa, a la ministra de Cultura y Juventud, a la ministra de Ambiente y Energía, a la directora ejecutiva del Sistema Nacional de Áreas de Conservación, al presidente ejecutivo del Instituto Costarricense de Turismo, al alcalde de Puntarenas y a la directora de la Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza. Cada uno dispondrá de un tiempo máximo de diez minutos, dentro del cual deberán presentar los argumentos jurídicos y técnicos que corresponda, ajustándose también a cada una de las reclamaciones planteadas por la parte accionante. Si por alguna razón se incorporasen tardíamente a la diligencia, deberán tomar la misma a partir del momento en que la vista se encuentre, lo cual determina que, si han estado ausentes al momento de hacer uso de la palabra, no podrán presentar posteriormente sus argumentos, salvo mejor criterio del Tribunal. C) Finalizada la presentación de las anteriores autoridades, se dará uso de la palabra al coadyuvante Jorge Alberto Serendero Hülssner, por un tiempo máximo de cinco minutos, dentro del cual deberá exponer los argumentos jurídicos y técnicos que corresponda, ajustándose también a cada una de las reclamaciones planteadas por la parte accionante. Si por alguna razón se incorporase tardíamente a la diligencia, deberá tomar la misma a partir del momento en que la vista se encuentre, lo cual determina que, si han estado ausentes al momento de hacer uso de la palabra, no podrá presentar posteriormente sus argumentos, salvo mejor criterio del Tribunal. D) Concluidas las presentaciones antedichas, la Presidencia de la Sala concederá el uso de la palabra a la parte accionante, así como al procurador General de la República, al presidente de la Asamblea Legislativa, a la ministra de Cultura y Juventud, a la ministra de Ambiente y Energía, a la directora ejecutiva del Sistema Nacional de Áreas de Conservación, al presidente ejecutivo del Instituto Costarricense de Turismo, al alcalde de Puntarenas y a la directora de la Oficina Regional para México, América Central y el Caribe de la Unión Internacional para la Conservación de la Naturaleza para que en un tiempo máximo de tres minutos formulen la réplica que estimen pertinente; el orden de intervención será igual al dispuesto para la presentación inicial. E) Finalizadas estas presentaciones, la Presidencia de la Sala concederá el uso de la palabra a las magistradas y los magistrados presentes, para que formulen las consultas o aclaraciones que consideren necesarias. F) De no haber necesidad de otras intervenciones de las magistradas y los magistrados, se dará por finalizada la vista, sin perjuicio de que en fecha posterior los intervinientes puedan aportar por escrito sus apreciaciones sobre aspectos discutidos en la diligencia. Cuestión de orden: Debido a la naturaleza judicial de esta diligencia, las partes presentes deberán tomar las previsiones necesarias para evitar molestias innecesarias motivadas por el funcionamiento de aparatos electrónicos, razón por la cual deberán desconectar durante la celebración de la vista los teléfonos celulares, localizadores y demás artefactos que por su carácter puedan producir molestias durante la celebración de la diligencia. Se advierte a las partes que cualquier desatención a lo aquí indicado y la alteración del orden por cualquier vía, facultará al Tribunal para adoptar las medidas que estime pertinentes. Notifíquese”.
160. 161Por escrito incorporado al expediente digital el 13 de abril de 2023, William Rodríguez López, en su condición de ministro de Turismo indicó que en la vista fechada para el 4 de mayo de 2023 participarán tanto él como el asesor legal José Coto Meza
161. 162Por escrito incorporado al expediente digital el 17 de abril de 2023, Wilber Madriz Arguedas, en su condición de alcalde de Puntarenas, indica que en la audiencia del 4 de mayo de 2023 participará en calidad de abogado Carlos Ricardo Benavides Jiménez.
162. 163Por escrito incorporado al expediente digital el 18 de abril de 2023, Úrsula Parrilla Artiuguina, en su condición de representante judicial y extrajudicial con facultades de apoderada generalísima sin límite de suma de la UICN, expone que su puesto es administrativo y le corresponde dirigir a su representada en todos los países ya conocidos. Aclara que no es científica ni especialista en el tema del informe rendido, sino que le corresponde supervisar que los proyectos se efectúen de la mejor manera. Expone que el personal más calificado en el tema es el científico José Courrau, doctor en Recursos Naturales, motivo por el cual pide que se le autorice para hacer la disertación.
163. 164Por escrito incorporado al expediente digital el 18 de abril de 2023, Rodrigo Arias Sánchez, en su condición de presidente de la Asamblea Legislativa, indica que en su representación asistirá a la vista del 4 de mayo de 2023 Freddy Camacho Ortiz, director del Departamento de Asesoría Legal.
164. 165Por escrito incorporado al expediente digital el 18 de abril de 2023, Nayuribe Guadamuz Rosales, en su condición de ministra de Cultura y Juventud, indica que, en la audiencia del 4 de mayo de 2023, se acompañará de Vladimir Cubillo Marenco, en su condición de asesor legal del despacho.
165. 166Por escrito incorporado al expediente digital el 18 de abril de 2023, Wilber Madriz Arguedas, en su condición de alcalde de Puntarenas, indica que en la audiencia del 4 de mayo de 2023 participará en él en su condición de alcalde y el abogado Carlos Ricardo Benavides Jiménez.
166. 167Por escrito incorporado al expediente digital el 18 de abril de 2023, Franz Tattenbach Capra, en su condición de ministro de Ambiente y Energía indica que para la vista del 4 de mayo de 2023 se nombró a Rafael Gutiérrez Rojas, en su condición de viceministro, debido a que debe atender la agenda internacional. Expone que también participará Karen Quesada Fernández en representación del SINAC, así como Ana Lorena Polanco, en su condición de asesora jurídica de ese despacho.
167. 168Por escrito incorporado al expediente digital el 18 de abril de 2023, se apersona Wilber Madriz Arguedas, en su condición de alcalde de Puntarenas y expone: “Procedo a referirme a los principales argumentos esbozados por los accionantes, no sin antes presentar de forma resumida algunos datos que estimo fundamentales para comprender el origen y debido fundamento constitucional de la ley 9892. 1- Antecedentes históricos, normativos y jurisprudenciales de la Ley de Creación del Parque Nacional Isla San Lucas, Ley 9892. Para poder comprender de manera integral la conformación de la Ley 9892 es necesario entender también el origen histórico de las manifestaciones administrativas, sociales y culturales de la Isla San Lucas a través de cientos de años, así como tener presente la evolución normativa (leyes y decretos) sucedida con respecto a su administración y sus fines, tanto como es necesario recordar las sentencias de esta Sala Constitucional del año 2010 y 2011 al atender acciones de inconstitucionalidad contra uno de sus decretos, así como la que resolvió un recurso de amparo en el año 2011.Todos estos elementos fueron recogidos desde la Exposición de Motivos del proyecto de ley, así como en las manifestaciones de los legisladores a través del proceso de formación de la ley. - Época de la conquista. La isla que hoy conocemos como San Lucas a la llegada de los españoles fue visitada por Gonzalo Fernández de Oviedo, en el año 1529. Según su relato sus habitantes aborígenes la llamaban “Chara” pero los españoles le bautizaron con el nombre de “Sant Lúcar”, nombre que terminaría derivando en el actual “San Lucas”. Según el trabajo de investigación histórica realizado por Antal B. Bálint (La Isla de San Lucas, 2da edición, Biblioteca de la Colonia Agrícola, 1965), los aborígenes de Chara hablaban en náhuatl, aunque existía evidencia de que antes de estos la isla estuvo poblada por los Caribes. “La isla de Chara es la que los chripstianos llaman Sant Lúcar…En estas islas hay perlas; é (sic) yo las ví (sic) las islas de Chara é Chira é (sic) Pocosi (sic); é las saqué de algunas hostias que los indios nos traían para comer…en estas islas de Chara é (sic) Pocosi (sic) no tienen canoas, sino balsas de quatro (sic) ó (sic) cinco ó (sic) seys (sic) maderos atados á (sic) los cabos y en medio á (sic) otros palos mas (sic) delgados atravesados…Está la isla de Chara, que otros llaman de San Lúcar, en nueve grados é (sic) treynta (sic) é ocho minutos, que son dos tercios de grado menos dos minutos".(Costa Rica vista por Fernández de Oviedo, Ministerio de Cultura, Juventud y Deportes, Imprenta Nacional, San José, Costa Rica, 1978, pp. 20-27). - Isla para el Comercio. La Ley Nº 37 del 3 de agosto de 1847 otorgó a San Lucas la franquicia de comercio. - Creación de la prisión. Durante el Siglo XIX la isla fue utilizada como sitio de destierro político o para cumplir cuarentena por parte de los tripulantes de naves extranjeras. En el año 1873 Tomás Guardia ordenó convertirlo en una cárcel. La Ley Nº 7 del 25 de febrero de 1874 reglamentó el presidio en San Lucas bajo la autoridad del Gobernador de la Comarca de Puntarenas. La Ley Nº 89 del 20 de marzo de 1925 autorizó el giro de cuarenta mil colones para la reconstrucción de los edificios del presidio de San Lucas con las obras necesarias para alumbrado eléctrico y provisión de aguas, así como diez mil colones para los estudios necesarios de selección del sitio del nuevo presidio.(Colección de Leyes y Decretos, semestre 1, tomo 2, p. 511). La Ley Nº 54 del 13 de junio de 1934 destinó veinte mil colones para los servicios de fuerza eléctrica en la Isla. (Colección de Leyes y Decretos, semestre 1, tomo 1, p. 512). Así la isla funcionó como penitenciaria durante más de cien años. Se estima que la mayor parte de sus instalaciones carcelarias fueron construidas durante la década de 1930. Las penurias de miles de reos y las violaciones a sus derechos humanos fueron recogidos por la mundialmente famosa obra “La Isla de los Hombres Solos”, de José León Sánchez, la novela de autor costarricense más conocida en el planeta. - Etapa de la Colonia Agrícola. El 10 de diciembre de 1961 el sistema carcelario sufrió un cambio profundo, convirtiéndose la isla en la llamada “Colonia Agrícola Penal de San Lucas”. Aunque desde 1948 se habían producido cambios muy importantes en su régimen, como la prohibición de maltratos físicos y el cierre de los antiguos calabozos de castigo, fue finalmente esta Colonia Agrícola que marcó un cambio profundo, liderado en el Consejo Superior de Defensa Social por Joaquín Vargas Gené, Manuel Guerra y Héctor Beeche Luján.Le correspondió al Lic. Rigoberto Urbina Pinto, en su condición de Director General de Defensa Social, poner en marcha el proyecto. - La Hacienda. La isla fue transformada en gran parte de su territorio en lo que denominaron “La Hacienda”, cuya actividad principal consistió en la crianza de ganado Brahaman y de porcinos, aves de corral y la producción de guineo, maíz, tomate y otras hortalizas. Durante aquella época no existía bosque del todo y los privados de libertad producían bienes agropecuarios en la mayor parte de su extensión. El referido escritor Antal B. Balint, desarrolló su obra mientras era uno de los privados de libertad en la propia isla: “En el tiempo lluvioso hay tal abundancia de pasto, que el ganado no logra utilizarlo todo y así es que ocupan en la “chapia” muchos internos. En verano, cuando hay varios meses de sequía, escasea el forraje y hay necesidad de recurrir a los alimentos preparados.El criadero de cerdos está instalado cerca de la playa El Coco, cuenta con excelentes reproductores y buenas instalaciones. La Hacienda dispone de varias plantaciones de guineos, para alimentar los porcinos, fuera de eso reciben los sobrantes de las diferentes cocinas de la Colonia y los subproductos de la Hacienda utilizables para ellos”. “En la playa del Coco hay otra granja avícola mixta de gansos, patos, pavos, gallinas y diferentes aves de adorno. Las aves se nutren de alimentos concentrados. También existen varios caballos que se usan para silla. En cuanto a la agricultura, el terreno es pedregoso y arcilloso, la topografía quebrada, el aridez (sic) del clima y la falta de agua para el riego no permiten hacer mucho. En el invierno se puede producir una condena de maíz no muy abundante, tomates y otras hortalizas” (Op. cit páginas 14 y 15). Durante aquellos años igualmente había en la isla talleres para fabricación de escobas por parte de los internos.Se producían también muebles diversos, su taller de carpintería contaba con abundante herramienta y varias máquinas eléctricas. Su taller mecánico era también el responsable de darle mantenimiento a la planta eléctrica de la isla. Había actividades culturales y una biblioteca llamada “Manuel I. Guerra Trigueros” en memoria de uno de los impulsores de este modelo penitenciario. El edificio que albergaba la biblioteca era la construcción más moderna y bella de la Colonia. Fue una idea de Joaquín Vargas Gené y fue fundada con la colaboración de José León Sánchez. Tenía miles de libros, la mayor parte donados por diversas instituciones. Fue durante esa época en que se construyó la Capilla, en la cual se realizaban diversas actividades religiosas, durante sus inicios bajo el patrocinio de las Hermanas Franciscanas del Colegio Saint Clare. - Traspaso a la Municipalidad de Puntarenas. En el año de 1974 la ley 5469 dispuso que una vez que se dió (sic) el cierre del centro penal, la Isla pasó a ser propiedad de la Municipalidad de Puntarenas, con la finalidad de que se desarrollara en ella un proyecto turístico, aprovechando para ello la riqueza natural y paisajística de la isla.“Artículo 1º.- Traspásase la propiedad de la Isla de San Lucas ubicada en el Golfo de Nicoya, a la Municipalidad de Puntarenas”. “Artículo 2º.- La Municipalidad deberá utilizar la Isla como un centro turístico, para lo cual se le autoriza a contratar las obras de infraestructura necesarias” “Transitorio Único.-El traspaso a que se refiere el artículo 1º se efectuará en el momento en que el Penal actual localizado en la Isla de San Lucas sea trasladado a otro sitio, para lo cual se conceden dos años de plazo al Poder Ejecutivo para buscarle nueva ubicación a dicho Penal, de acuerdo a las leyes vigentes”. - Decreto de Incorporación al Patrimonio Histórico Arquitectónico de Costa Rica del inmueble denominado Isla San Lucas, Ministerio de Cultura. Mediante el Decreto Ejecutivo 24520-C del 25 de agosto de 1995 se declara de interés histórico arquitectónico las edificaciones que conformaban el antiguo presidio con sede en la Isla San Lucas.Se considera que la parte arquitectónica y grafiti de la antigua Penitenciaría es sumamente importante ya que evidencia la historia de cómo el Estado controlaba y reprimía a los privados de libertad. Algunos de los elementos arquitectónicos sobresalientes del penal merecedores de la condición de patrimonio histórico según el decreto son: El atracadero. Esencial para el acceso al lugar de personas y el aprovisionamiento del mismo. Estructura de concreto en contacto con el agua del mar. Estructura de concreto en contacto con el agua del mar. La calzada de piedra. Elemento conector y conductor del flujo principal del conjunto. La capilla. Elemento arquitectónico y simbólico por excelencia. La Comandancia. Este es el edificio de la administración penitenciaria compuesto de dos plantas. Los calabozos de acceso. Los pabellones. Alto valor histórico y cultural El Dispensario Médico. Sitio de atención de la salud de los privados de libertad y de los funcionarios del centro penal.También se atendió a personas enfermas de islas vecinas. Barrio las Jachas. Símbolo de la diversidad de estratos y formas de vida en la Isla. Se consideran las casas del barrio “Las Jachas” estructuras de valor cultural representativas de una forma de vida presente en la historia de la Isla, que se deben rescatar. Otras estructuras. La Isla posee dos casas, varias ruinas, los corrales de piedra, los caminos internos, entre otros que formaron parte de La Hacienda de San Lucas en época de la Colonia Agrícola Penal. - Decreto de creación del Refugio de Vida Silvestre. El 12 de febrero del 2001 se emitió el Decreto de Creación del Refugio Silvestre Isla San Lucas, decreto número 29277. En sus Considerandos dicho decreto reconoció la importancia de “los rasgos culturales” de Isla San Lucas (considerando 2) así como la importancia de la investigación, recreación, educación ambiental, belleza escénica” mediante el “aprovechamiento de los recursos naturales renovables, explotados racionalmente” (considerando 5).Con respecto a su administración el artículo 4 de dicho decreto señala: Artículo 4º—La Administración de las áreas protegidas aquí declaradas será competencia del Ministerio de Ambiente y Energía y de las instituciones establecidas por la normativa vigente (…)”. Dicha redacción nos permite afirmar que aún con la creación del Refugio Silvestre existía conocimiento de la necesidad de reconocer el papel de otras instituciones tales como la Municipalidad de Puntarenas (como dueña registral de la isla y encomendada por ley para velar por el componente turístico junto con el ICT) y el Ministerio de Cultura (como entidad competente para el cuido y restauración del inmenso patrimonio histórico contenido en la isla). - Decreto de ampliación del Refugio, declaratoria de interés nacional al Desarrollo Turístico Sostenible de la Isla y creación de la junta directiva multi-institucional. Mediante decreto número 34282 publicado el 08 de agosto del 2008, se ampliaron los límites de la isla, incluyendo los islotes cercanos a la isla y la porción marina entre dichos islotes y San Lucas.Adicionalmente mediante este conjunto normativo se declaró de interés nacional y alta prioridad el desarrollo turístico sostenible de San Lucas: “Artículo 2º-Declárese de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos del presente decreto, así como la conservación y restauración de las edificaciones del antiguo penal en la Isla San Lucas. Las dependencias de la Administración Pública y del Sector Privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la Isla”. Igualmente se encomendó a una Comisión Permanente multi-institucional la administración del Refugio de Vida Silvestre: “Artículo 3º-Créase una Comisión Permanente conformada por los Ministros Rectores de Cultura, Juventud y Deportes, Turismo y Ambiente y Energía, o sus representantes y por el Alcalde de Puntarenas o su representante, encargada de velar por el manejo racional de los terrenos de administración municipal.La Comisión tendrá una Secretaría General de Coordinación cuyo titular será designado por el Presidente de la República”. Finalmente se encomendó al Instituto Costarricense de Turismo (ICT) la elaboración de un Plan Maestro de Desarrollo Turístico Sostenible, con la finalidad de preservar el patrimonio cultural y las actividades turísticas: “Artículo 5º-Para el desarrollo de actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, el ICT elaborará un Plan Maestro de Desarrollo Turístico Sostenible, que comprenderá un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural esa área específica (…)”. Es menester señalar que, a pesar de la interposición de dos acciones de inconstitucionalidad contra las (sic) citados artículos 2, 3 y 5, así como contra el numeral 4 de ese decreto, esta Sala Constitucional los consideró conformes con el Derecho de la Constitución y mantuvo su vigencia, como lo veremos en el próximo apartado. - Resoluciones de la Sala IV sobre acciones de inconstitucionalidad contra el Decreto número 34282 del año 2008.Resulta de medular importancia transcribir varios de los textos que componen la sentencia número 13099-2010 de esta Sala, para comprender mejor la forma en la que este Tribunal Constitucional atendió la existencia de un conflicto de competencias institucionales ligadas a derechos y potestades públicas contenidas en nuestra Constitución Política. De esta forma se entenderá mucho mejor la enorme importancia de la Ley 9282 para promover la armonía de tales derechos constitucionales y el complejo tinglado de las competencias del Ministerio del Ambiente, el Ministerio de Cultura, el Instituto Costarricense de Turismo y la Municipalidad de Puntarenas, con respecto a la isla San Lucas. Sobre el conflicto de competencias la Sala planteó el problema para luego sostener que la preservación del medio ambiente, la protección del patrimonio histórico y el rol del órgano municipal son conciliables y ambas declaratorias tienen idéntico valor frente a nuestra Constitución: “En la acción que nos ocupa, está en aparente disputa la Ley 5469 del 25 de abril de 1974, que es Ley de Traspaso de la Isla San Lucas a la Municipalidad de Puntarenas, la Ley No. 7554 del 13 de noviembre de 1995, que es la Ley Orgánica del Ambiente y, finalmente, la Ley No. 7555 del 4 de octubre de 1995, que es la Ley del Patrimonio Histórico-Arquitectónico de Costa Rica.La cuestión de fondo de esta demanda de inconstitucionalidad, radica en determinar cuáles disposiciones legislativas predominan o si se complementan en el caso de la Isla San Lucas, todo lo cual, nos obliga, para una mejor ponderación, a re-examinar el planteamiento que se hizo en la demanda que analizó la Sala en su sentencia No. 2004-08928”. (…) “Pero aunado a lo resuelto anteriormente sobre el quebrantamiento al principio de la jerarquía normativa y la afectación a la autonomía municipal que alegó la Municipalidad de Puntarenas, resulta determinante para la discusión de esta acción de inconstitucionalidad el Decreto Ejecutivo No. 30714-C (anterior a la sentencia transcrita), cuya atención no fue traído ni fue valorado en aquel momento por la Sala, por cuanto se declara e incorpora al Patrimonio Histórico Arquitectónico de Costa Rica, el inmueble denominado Isla San Lucas, de la provincia de Puntarenas, realizado al amparo principalmente de la Ley 7555, sobre el Patrimonio Histórico- Arquitectónico de Costa Rica, acto administrativo igualmente válido al que declara el Área Silvestre Protegida por parte del Ministerio de Ambiente y Energía, y coexisten en cada uno en sus ámbitos competenciales”.Con respecto al valor constitucional del patrimonio histórico-cultural y la importancia económica del mismo, esta Sala se pronunció así: “Es por lo anterior que el concepto de patrimonio histórico-arquitectónico ha evolucionado y con él los criterios para su protección, de manera que ya no se justifica en un ideal "romántico", sino como una condición de identidad de los pueblos, como parte integrante de su historia y su cultura, atendiendo a razones de desarrollo social- económico y urbanístico-ambiental o urbanístico-ecológico, y que tiene un sustento más humano. Es así como se hace necesaria la protección por los Estados, que permita una acción eficaz y eficiente, sobre la base de una construcción científica coherente con la realidad, tanto en el ámbito de las teorías territoriales y arquitectónicas, como en el legal, en tanto interactúa con otras disciplinas y saberes, como la Historia, la Antropología, la Arquitectura, y la Teoría de la Restauración, y el Derecho, entre otras; y que tome en consideración las circunstancias propias del país, como lo son el grado de subdesarrollo y la dependencia económica.Es así como la protección de este patrimonio debe integrarse de manera activa a los recursos sociales y económicos del país, para que no constituya una carga para el Estado, ni tampoco para la población (propietarios, poseedores o titulares de algún derecho real sobre los bienes incorporados a este régimen especial de tutela), de manera tal que se configure como otro recurso más que genere bienestar social. XVII.- La protección del patrimonio cultural se enmarca dentro del Derecho Urbanístico, que últimamente ha venido a ser comprendido dentro del marco más amplio del Derecho Ambiental, el cual encuentra su sustento jurídicoconstitucional en los artículos 50 y 89 de la Constitución Política, en tanto disponen textualmente: "El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza. Toda persona tiene derecho a un ambiente sano y ecológicamente equilibrado.Por ello está legitimado para denunciar los actos que infrinjan ese derecho y para reclamar la reparación del daño causado. El Estado garantizará, defenderá y preservará ese derecho. La ley determinará las responsabilidades y las sanciones correspondientes" (artículo 50); y "Entre los fines culturales de la República están: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación y apoyar la iniciativa privada para el progreso científico y artístico" (artículo 89). Esta última norma da directrices para que las autoridades públicas impulsen la protección del medio ambiente, entendido esto de una manera integral, sea, no entendido en su sentido tradicional que se ha limitado al ámbito del recurso natural, lo que comúnmente se conoce como "lo verde", en tanto se ha entendido que comprende los recursos naturales (bosques, agua, aire, minerales, flora y fauna, etc.), sino también en lo relativo al entorno en que se vive, que comprende, no sólo a las bellezas escénicas de la naturaleza, como el paisaje, sino también todo lo relativo a las ciudades y conglomerados urbanos y rurales, es decir, al concepto de lo urbano”.Sobre el Convenio sobre la Protección del Patrimonio Mundial, Cultural y Natural, aprobado por Costa Rica mediante ley 5980, la Sala dispuso: “Para esta Sala, la obligación establecida en el artículo 4 del Convenio no se agota con la declaratoria formal de sitios bajo un determinado régimen legal (nacional o internacional), sino que implica una función asertiva y progresiva del Estado, sin perjuicio de obtener eventualmente los beneficios financieros, artísticos, científicos y técnicos a través de los mecanismos que prevé el Convenio, por ello, la puesta en funcionamiento de los bienes culturales es posible mediante su rehabilitación, es decir, su puesta en valor como fuente de recursos financieros. “Como se ve, la cobertura jurídica de los instrumentos internacionales es igual para el patrimonio natural y cultural, consecuentemente todo aquello que esté fuera de estos estándares resultará ilegítimo, lo cual incluye desatenciones que agraven las condiciones de los bienes culturales.De conformidad con lo anterior, corresponde a la Sala analizar, si también son fines legítimos de los Estados impulsar el desarrollo mediante políticas, que permitan la explotación de sitios arqueológicos, de patrimonio natural, cultural, o mixtos, de manera que sean puestos en valor, según lo que se pretende con el Decreto Ejecutivo 34282-TUR-MINAET-C”. “Así que, el meollo de la discusión en la acción no debe radicarse únicamente en el tema de la conservación del patrimonio natural en la Isla San Lucas (entendido como aspectos ecológicos y ambientales únicamente). La Sala ha constatado que el paso de las décadas ha permitido la regeneración del bosque secundario, de manera que en este aspecto, la declaratoria de Área Silvestre Protegida obtuvo la protección del Ministerio de Ambiente, Energía y Telecomunicaciones necesaria para la recuperación de los espacios que antes fueron utilizados para la ganadería, por ejemplo.Pero la palpable falta de mantenimiento del centro histórico, su deterioro progresivo y la amenaza sobre los bienes históricos y culturales existentes en la Isla San Lucas no debe asumirse con ligereza. Con la pretensión del Poder Ejecutivo de desarrollar el ecoturismo en la región, como una medida para dar protección al patrimonio cultural, abre un nuevo campo de discusión que permitiría consecuentemente reafirmar conceptos y bienes que igualmente están protegidos internacionalmente y que se incorporan a la obligación contenida en el artículo 89 de la Constitución Política, al señalar entre los fines culturales, la protección de las bellezas naturales, conservación y desarrollo del patrimonio histórico y artístico de la Nación”. Sobre el papel del turismo sostenible y su importancia dentro del Derecho de la Constitución, la citada sentencia de la Sala señaló: “Dentro de los fines constitucionales del Estado está la de desarrollar políticas que reduzcan las brechas sociales y económicas, ajustado por supuesto a los ambientes, sean naturales, rurales o mixtos, todo ello nace de lo preceptuado por el artículo 50 constitucional.Tener acceso al desarrollo, en materia de oportunidades laborales, o en la calidad de vida, y por ende, un progreso económico forman parte del reconocimiento y avance de los derechos humanos, de ahí que el desarrollo rural a través del turismo no debe significar para los individuos abandonar sus costumbres y formas de vida tradicionales para migrar hacia las ciudades, sino un ajuste de ellas con las necesidades y avances actuales. En este sentido, en el criterio de la Sala el verdadero reto del ser humano es que se genere el progreso y –porque no- felicidad (material y espiritual) sin que amenace los recursos disponibles en el medio ambiente; lo contrario simplemente se traduciría en desigualdades sociales que impiden avanzar hacia un nuevo estadio de desarrollo humano”. Sobre el papel y el deber constitucional del legislador de estimular el desarrollo rural a partir del turismo combinando el patrimonio natural y el patrimonio cultural, este Tribunal dispuso: “Ahora bien, el desarrollo rural, con base en el turismo, debe fundarse sobre otros ejes particulares: uno de ellos es el que la doctrina señala como la conservación de los valores propios de los espacios rurales.Este principio radica en que los espacios rurales exigen ser conservados sosteniblemente. En tal sentido, el bosque, el mar, la montaña, los volcanes, los manglares, humedales, etc. propician diferentes tipos de escenarios de desarrollo como intereses puedan existir. En sí, cada uno se constituye en un valor de apreciación escénica sujeta a la protección constitucional. Pero la labor de focalizar y estimular este tipo de políticas de desarrollo rural, son materias que corresponden al Legislador y al Poder Ejecutivo en sus funciones constitucionales. Esta Sala debe resaltar que la conservación de las características particulares de los ambientes rurales o del entorno natural o paisajista, es un valor contenido en el artículo 89 constitucional que requiere protección y debe dirigirse a la protección del entorno que potencia su valía, no solo como espacio rural, sino también como un destino turístico para que se hagan sentir los efectos positivos en la comunidades vecinas (sic)”.Sobre los principios constitucionales de Unidad y Coordinación, relativos a la existencia del órgano multi-institucional encargado en el decreto para administrar el Refugio de Vida Silvestre, la Sala de forma contundente expresó: “El Estado es una unidad de competencias, que debe subdividirse por grados de especialización para lograr sus cometidos y fines señalados en el ordenamiento jurídico. Si los órganos y entes públicos deben llenar fines constitucionales (artículos 50 y 89) con fundamento en el grado de especialización de funciones, su coordinación debe ser un aspecto prioritario para la solución de los problemas que surgen en el ejercicio de sus respectivas competencias, el Ministerio de Ambiente, Energía y Telecomunicaciones en cuanto regenta el patrimonio natural, el Ministerio de Juventud, Cultura y Deportes en lo relacionado a las políticas de conservación del patrimonio histórico- patrimonial, el Instituto Costarricense de Turismo en la habilitación y conservación de sitios históricos y de belleza natural para el turismo, y la Municipalidad de Puntarenas al velar por los intereses locales de su comunidad.La Ley que crea el Ministerio de Cultura, Juventud y Deportes, No. 4788, y la Ley de Patrimonio Histórico – Arquitectónico de Costa Rica, No. 7555, señalan el ámbito de competencia específica del Ministerio como ente rector en la materia”. Todos los citados elementos y acontecimientos históricos, culturales, administrativos, normativos y jurisprudenciales son la base de la Ley 9282 de Creación del Parque Nacional Isla San Lucas. Se encuentran mencionados por los legisladores en la Exposición de Motivos del proyecto de ley que luego se convirtió en la ley 9282 así como en las discusiones recogidas durante su tramitación en comisión y el plenario legislativo. No es cierta la afirmación de los accionares en el sentido de que la ley resulte inmotivada, intempestiva o arbitraria. Por el contrario, es el esfuerzo normativo más integrador realizado por el Estado para armonizar las competencias de las entidades públicas con responsabilidades sobre la isla, así como armonizar la protección ambiental, la protección del patrimonio histórico cultural y el derecho de los ciudadanos a la visitación y a conocer las riquezas patrimoniales que contiene la isla.Ahora analizaremos los argumentos planteados por los accionantes. 2- De la supuesta reducción del Área Silvestre Protegida alegada por los accionantes La ley de Creación del Parque nacional Isla San Lucas no deroga la condición de los territorios contemplados por el Refugio, solo cambia de condición a la mayor parte del refugio convirtiéndolo en parque nacional. El resto del área perteneciente a ese refugio permanece protegido como tal. De una simple revisión de la ley 9282 podemos apreciar que no existe norma alguna que derogue el refugio. Existe un cambio de condición en favor de toda la porción terrestre de la isla así como del contorno acuático inmediato (hasta tres metros). Esas son las áreas que componen el Parque Nacional. Pero las áreas no abarcadas por la ley 9282 (consistentes en unos islotes situados a distancia de la isla y una porción marina) no perdieron su protección, como no podía suceder por efecto indirecto y no expreso de la ley.El mapa elaborado por el Departamento Topográfico y Observación del Territorio del Instituto Geográfico Nacional (IGN) del año 2021 y aportado a este expediente judicial por la Presidencia de la Asamblea Legislativa, resulta ampliamente esclarecedor para dilucidar este punto. Para los efectos del presente informe municipal solicito igualmente tenerlo como prueba. En el mismo se contrasta la imagen del actual Parque Nacional con respecto a la del Refugio de Vida Silvestre, quedando claro que la desprotección alegada por los accionantes sobre algunas áreas nunca ocurrió. Por el contrario, la mayor parte del refugio pasó a ser Parque Nacional. El resto continua como tal. A continuación aporto la referida imagen del mapa elaborado por el IGN al efecto. 1097500 1098000 1098500 1099000 1099500 1100000 1100500 1101000 1097500 1098000 1098500 1099000 1099500 1100000 1100500 1101000 397500 398000 398500 399000 399500 400000 400500 401000 401500 402000 402500 403000 403500 404000 2021 ASAMBLEA LEGISLATIVA ELABORADO POR EL INSTITUTO GEOGRÁFICO NACIONAL DEPARTAMENTO TOPOGRÁFICO Y OBSERVACIÓN DEL TERRITORIO AÑO: PARQUE NACIONAL ISLA SAN LUCAS R I O S A N J UA N INTERESADO: SIMBOLOGÍA Límite del Refugio Nacional, Decreto 34282 Isla Parque Nacional San Lucas, Ley 9892 Area (sic) Marina Parque Nacional San Lucas, Ley 9892 3- Del supuesto cambio de categoría de manejo e inclusión de una zona turística sin estudios Las áreas de visitación turística en TODOS los parques nacionales tienen un uso y manejo diferente al de los espacios cubiertos de bosque.Estas áreas de visitación en Costa Rica representan menos del 4% del total de la extensión de todos los parques nacionales y demás áreas silvestres protegidas. Estas áreas de visitación en cada uno de los casos fueron determinadas mediante planes de manejo realizados por el SINAC, en muchos casos bajo la base de realidades históricas, como en el caso específico de Isla San Lucas, ante la existencia de instalaciones carcelarias y otros edificios antiguos que obviamente no son creación de la naturaleza. La denominada zona turística que señala la Ley 9282 es exactamente la MISMA zona de visitación turística que por casi 50 años ha existido, y es la misma que se encuentra establecida por el Plan de Manejo de la Isla elaborado por el SINAC en su más reciente versión del año 2020, zona a la que denomina como Zona de Alta Intervención (ZAI) y Zona de Mediana Intervención (ZMI), así como es coincidente también con el Plan de Desarrollo Sostenible de Isla San Lucas emitido por el Instituto Costarricense de Turismo.Esta área o zona de visitación turística está compuesta por los terrenos visitables a través de décadas, desprovistos de bosque, en donde se encuentran las edificaciones históricas del antiguo penal (las celdas comunes, los calabozos, el edificio administrativo, la iglesia, el dispensario médico, las cocinas y lavandería del penal, el comisariato, las áreas que ocupaban las casas de los funcionarios administrativos y privados de libertad de buena conducta, el corral y demás instalaciones de La Hacienda, y la biblioteca, el muelle, las torres de vigilancia y recepción de reos, las casas de los guardaparques (antiguas y actuales), los pozos de agua del antiguo penal, las áreas de desembarque de botes en la bahía, así como los senderos y caminos hechos a través de más de 150 años por funcionarios del antiguo penal, funcionarios municipales posteriormente y funcionarios del SINAC de forma más reciente (según quien ostentaba la administración cotidiana de la isla) así como el área pública de playa inmediatamente contigua a la pleamar ordinaria.No existe novedad alguna en esta área ni margen para inventarse novedades. Los accionantes intentan llevar a error a quienes no conocen bien sobre la isla o nunca la han visitado. Estos espacios son los mismos que desde al menos el siglo XIX han sido ocupados por el ser humano y han sido utilizados para diversas actividades sociales y económicas. No existe alteración de las condiciones materiales de las zonas de bosque (las cuales se encuentran excluidas de la zona de visitación turística). De tal forma ha sido abordado científicamente por parte de distintas entidades, particularmente del Sistema Nacional de Áreas de Conservación (SINAC), órgano del MINAE que elaboró el Plan de Manejo de Isla de San Lucas. Repito que su versión vigente corresponde al año 2020. Dicho Plan de Manejo del SINAC denomina Zona de ALTA INTERVENCIÓN y zona de MEDIANA INTERVENCIÓN al área de Visitación de lo que hasta entonces era el Refugio de Vida Silvestre.Esta misma área es fundamentalmente la que la ley 9282 denominó Zona Turística. A continuación transcribiremos la descripción que hace el citado Plan de Manejo del SINAC: “4.7.4 Zona de alta intervención (ZAI) Los sectores del ASP que se definan con esta categoría tendrían un nivel de intervención y uso mucho más alto que en las otras zonas. El objetivo o la condición deseada siempre será mantenerse dentro de un estado ambiental conforme a la categoría de manejo establecida para el RNVSISL, pero dejando más oportunidad para el desarrollo de prácticas y actividades propias de una alta intervención. Igual que en las demás zonas los objetivos de conservación y desarrollo están dirigidos a contar con espacios en los que se pueda mantener una actividad turística sostenible de carácter permanente y más intensiva, actividades productivas o de aprovechamiento de recursos más abiertas, sin dejar de tener controles y normas estrictas.La intervención para uso administrativo y especial tiene mayores posibilidades de desarrollarse mientras esté debidamente planificada y controlada (SINAC, 2016). Esta zona la integra parte del área marina de la Bahía San Lucas; la Infraestructura del antiguo Presidio; Playa Cocos y Playa Tumbabotes; el Sendero a Playa Cocos, el Sendero a Playa Tumbabotes, el Sendero al Corral de Piedra, el Sendero a la Antigua Porqueriza, el Sendero a Playa El Inglés, el Sendero a Playa Hacienda vieja, el Sendero a Playa Bella vista, el Sendero a Punta de Oro (Punta El Coco), el Sendero Los Ceibos, el Sendero Mirador de Islas, el Sendero El Trogón; así como los dos sitios para infraestructura de Prevención, Protección y Control a ubicar en Tumbabote y Hacienda vieja. Así como los sitios de la parcela de Teca y la nueva casa de Guardaparques”. En el caso de la Zona de Mediana Intervención el Plan de Manejo en su página 50 la describe así: “4.7.3 Zona de mediana intervención (ZMI) El espacio o sitios que se defina para esta categoría tendrán una posibilidad de intervenciones de mediana intensidad, frecuencia e impacto en las prácticas y actividades que se puedan desarrollar.Los objetivos van dirigidos a contar con espacios donde se puedan aprovechar los recursos donde el impacto sobre los mismos se pueda controlar, aunque con límites razonables establecidos por la legislación. Se mantienen los recursos hídricos, ecosistemas, hábitat, biodiversidad y recursos culturales en un estado de salud aceptable. La ZMI la integra el Sendero a Playa Cirial, el Sendero a Punta Cañón; Punta Cañón; Playa El Inglés, Playa El Limón, Playa Hacienda vieja y Playa Cirial”. Seguidamente el Plan de Manejo SINAC especifica como una de las actividades a desarrollar en la zona de Mediana Intervención la siguiente: “Se permiten las visitas para grupos de personas organizadas, con fines turísticos, educativos, recreativos y científicos”. Como se puede apreciar esta descripción geográfica de la ZAI y de la ZMI coinciden con la de la Ley 9282 en su artículo 6, el cual señala: “ARTICULO 6- Zona turística.Las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se indican, estarán afectadas a la condición de Zona turística. Dichas áreas se especifican en las siguientes coordenadas: a) Área denominada Zona histórica: sitio donde se localizan las edificaciones del antiguo presidio San Lucas, (…) b) Área de recreo playa El Coco (…) c) Sector denominado Área de senderos (…) d) Área denominada Sector de agua (…)”. El uso turístico está igualmente permitido en toda la extensión de la Zona de Alta Intervención (ZAI) según el referido Plan de Manejo del año 2020 emitido por el SINAC, pero también la construcción de infraestructura necesaria para la atención de los visitantes. “En esta zona de manejo se permite: - Actividades recreativas y turísticas: caminatas guiadas por senderos autorizados para la observación de flora, fauna y recursos históricos; la fotografía y video no comercial. - La construcción de infraestructura para la atención de visitantes (por ejemplo, centros de visitantes, baterías sanitarias, senderos, miradores, plataformas, cafetería, tiendas de artesanía). - La construcción de infraestructura para la administración del Refugio. - La investigación científica y el monitoreo autorizado de acuerdo a la normativa vinculante. - Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, previamente autorizado por el SINAC. - Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, previamente autorizado por el SINAC - Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del ASP. - En esta zona también se permite la instalación y operación de servicios no esenciales aprobados con base en la normativa vigente”.(Pagina (sic) 52, Plan de Manejo Isla San Lucas, año 2020, SINAC). Como se puede apreciar, la descripción de las áreas comprendidas como de Alta Intervención del Plan de Manejo, y por ende aptas para las actividades turísticas y la construcción de las instalaciones para la atención de visitantes como “centros de visitantes, baterías sanitarias, senderos, miradores, plataformas, cafetería, tiendas de artesanía”, entre otros, así como “la instalación y operación de servicios no esenciales”, tal y como las describe dicho Plan, son los mismos territorios que se describen en la ley 9282. No existió por parte de los legisladores al crear la Ley 9282 arbitrariedad alguna al establecer el área en la que pueden llegar a autorizarse las actividades turísticas (todo según su Plan Maestro y los criterios técnicos del SINAC y del Centro de Patrimonio Histórico). Precisamente es fundamental recordar que según el artículo 7 de esta ley 9282 todas las actividades que pudieren llevarse a cabo en dicha zona turística estarán determinadas por un Plan Maestro, lo que sujeta las mismas a criterios científicos: “ARTÍCULO 7-Alcances y restricciones.El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos. (…)” Como corolario de lo anterior, el último párrafo del artículo 9 de dicha ley 9282 refuerza el carácter técnico-científico en la administración de esta zona y su sujeción a los mismos en cuanto a la protección del patrimonio natural y el cultural, obligatorios para la Junta Directiva en relación con todas y cada una de sus potestades: “Articulo 9-. Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones: (…) En materia de conservación y preservación del patrimonio históricoarquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac).Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible”. Se muestran extrañados los accionantes de que la zona de playa del sector conocido como Playa El Coco se tenga como parte de las áreas recreativas. Sorprende su extrañeza cuando bien saben que durante el tiempo en que tuvo categoría de refugio igualmente fue de uso para los visitantes. Las playas del país son y han sido históricamente áreas de acceso público y de esparcimiento para los costarricenses, incluidas las playas de los parques nacionales, caso concreto de la internacionalmente famosa Playa Espadilla en el Parque Nacional Manuel Antonio o la totalidad de la extensión del Parque Nacional Gandoca (sic) Manzanillo en la provincia de Limón. Todas esas playas, aunque están ubicadas dentro de un parque nacional, son sitios visitados por los turistas nacionales y extranjeros desde tiempos inmemoriales, caso idéntico a la Playa El Coco, la cual ha sido objeto de visitación desde la época de la citada “Colonia Agrícola Penal” en San Lucas, pasando por los años de administración municipal y durante toda la época del Refugio de Vida Silvestre.En este sentido la ley de Creación del Parque Nacional no genera novedad alguna con respecto a ese sector de la isla, sino que más bien reafirma el uso histórico promovido por el Estado, incluyendo al Sistema Nacional de Áreas de Conservación y su Plan de Manejo de esa isla. Afirmar que se incluyó en la zona de visitación indicada por la ley 9282 esta zona de playa de manera sorpresiva, abusiva o caprichosa es simplemente una afirmación temeraria que desconoce el uso que por más de un siglo se le ha dado a esa playa, pero que refleja también de parte de los accionantes su desconocimiento histórico y jurídico de la forma en que se ha nutrido la evolución normativa de la isla. 4- De los supuestos fines comerciales “disfrazados de fines sostenibles” en la “fragmentación” del ASP Los accionantes intentan escandalizar el término “comerciales” que la ley asigna a parte de las actividades que podrían permitirse por parte de la junta administrativa (la cual está además sujeta a los criterios técnico-ambientales).No se dan por enterados los accionantes de que ya existen actividades comerciales en los Parques Nacionales, como lo son la venta de alimentos y bebidas (caso por ejemplo del Parque Nacional Volcán Poás con su amplia cafetería, área de repostería, tienda de ropa, peluches, libros, carteras y otros artículos alusivos al volcán, o la cafetería y souvenirs Los Arrayanes ubicados dentro del Parque Nacional Volcán Irazú), o la venta de artículos turísticos (como en el Parque Nacional Rincón de la Vieja o el Parque Nacional Manuel Antonioi (sic)), o del servicio comercial de hospedaje en el Albergue Base Crestones del Parque Nacional Chirripó, un amplio sitio construido en concreto y madera con habitaciones con capacidad para hospedar a 4 turistas en cada una de ellas, albergue que cuenta con duchas, servicios sanitarios y por ende todas las instalaciones de agua potable y aguas servidas respectivas.Un conjunto de asociaciones de aquella región reunidas en el Consorcio Rural Comunitario ofrece en ese Parque Nacional Chirripó una diversidad de servicios comerciales tales como “servicios de alimentación, tienda, alquiler de equipo, hospedaje y traslado de equipaje dentro del Parque Nacional Chirripó”, como ellos mismos lo indican en su página web Visitar: https://www.chirripo.org/ Así también lo promueve el propio SINAC en su página oficial: “Con su visita no solo deleitará sus sentidos, sino que también contribuirá con el desarrollo y el bienestar de comunidades vecinas, al adquirir los servicios asociados, como el transporte de equipajes, el alojamiento, la alimentación y la venta de souvenirs”. Visitar: https://www.sinac.go.cr/ES/ac/aclap/pnch/Paginas/default.aspx Los citados “servicios asociados” son claramente servicios comerciales que se prestan a cambio de una contraprestación pecuniaria.¿Les merece preocupación a los accionantes que se puedan dar actividades comerciales de transporte interno en un parque nacional después de que por décadas esa actividad ha sido permitida y fomentada por el Estado como único medio de acceso y desplazamiento en el Parque Nacional Tortuguero, por cuyas aguas protegidas discurren pacíficamente más de doscientos mil turistas por año (datos de SINAC del año 2022) en embarcaciones comerciales? Ni qué decir del servicio comercial de miles de guías turísticos que operan diariamente dentro de nuestros parques nacionales y que cobran por ese servicio. El Parque Nacional Isla San Lucas no tiene porqué (sic) estar desprovisto de servicios comerciales tan fundamentales como soda o cafetería, tienda de souvenirs, o incluso transporte a través de sillas de ruedas eléctricas para que personas con discapacidad puedan recorrer las instalaciones de la antigua penitenciaría, o el alquiler de los servicios de atraque en un muelle diseñado para atender visitantes, solo para citar algunos de los servicios comerciales que podrían prestarse en el futuro sin afectación alguna al medio ambiente y que hoy se prestan en otros parques nacionales.Aunque no lo comprendan así los accionantes, todos esos son servicios comerciales. Nadie los va a prestar de forma gratuita, ni siquiera el Estado a través del MINAE lo hace en los demás parques nacionales. Repito, son servicios comerciales aunque suelan llamarlos eufemísticamente servicios “no esenciales” para disimular el carácter meramente comercial de los mismos y diferenciarlos del servicio aislado de mera protección ambiental que niega la relevancia inmensa que tiene la visitación a nuestros parques nacionales como principal sostén económico para su existencia. Todos esos servicios son comerciales puesto que se prestan a cambio de un pago que reciben personas de derecho privado, indistintamente de si se trata de asociaciones u otras organizaciones sociales, o de pequeños emprendedores de las comunidades circunvecinas de los mencionados parques nacionales. Los señores accionantes hacen uso de un lenguaje tremendista para llevar a error a los juzgadores, para insinuar que las actividades comerciales a desarrollar en San Lucas podrían ser otras de siniestro carácter, con alguna consecuencia negativa en el ambiente, y no las antes indicadas.Esa insinuación es engañosa y falta de sustento real, propia de una imaginación dedicada generar temores infundados en esta causa. Desconocen lo establecido en el artículo 9 de la ley 9282 que regula las potestades de la Junta Directiva de San Lucas, cuando la norma claramente establece como una de las potestades de esa junta: “f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística”. Para en el párrafo siguiente del mismo artículo señalar: “En materia de conservación y preservación del patrimonio históricoarquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac)”.Esta previsión contenida en el MISMO artículo que contiene las potestades de la Junta Directiva del Parque Nacional San Lucas no es vana ni gratuita. Es una determinación legal clara que establece los límites y el contenido de las disposiciones que puede tomar esa junta, cuyas competencias no son libérrimas, sino que se encuentran sujetas al criterio científico o técnicoambiental del SINAC. Ningún tipo de permiso o autorización de carácter comercial, artístico, deportivo o de transporte podría darse contra el criterio técnico o científico-ambiental, precisamente porque así lo establece esta ley 9282. 5- Sobre la Junta Directiva que administra el Parque desde el año 2020 Pretenden los accionantes que la Sala Constitucional anule las disposiciones legales según las cuales una junta administrativa perteneciente al MINAE, en condición de órgano desconcentrado, y compuesta por representantes del más alto nivel del MINAE, el Ministerio de Cultura, el Instituto Costarricense de Turismo, la Cámara de Turismo de Puntarenas y esta Municipalidad de Puntarenas, sean excluidas de tal administración, para que sea exclusivamente el SINAC el órgano que administre dicha isla.Semejante pretensión atenta contra el principio constitucional de Libre Configuración e intenta darle rango constitucional a normas de rango legal. La Municipalidad de Puntarenas de conformidad con la Ley 5469 es propietaria registral de esa isla y tiene obligaciones que se derivan de esa condición. Cuando la porción terrestre de la isla ya era Refugio de Vida Silvestre y algunos funcionarios públicos consideraban que toda potestad al respecto de la isla era exclusivamente del SINAC, esta Sala Constitucional determinó que tanto el MINAE como el Ministerio de Cultura y la Municipalidad de Puntarenas, somos responsables por el mantenimiento, conservación y buen uso del Patrimonio Histórico y Cultural de dicho Refugio y de sus bellezas naturales. Es así como lo expresó en la resolución de las catorce horas y treinta y siete minutos del veintitrés de marzo del dos mil once: “III.- De la relación de hechos probados de esta sentencia, la Sala considera que la omisión de las autoridades recurridas de tomar las medidas necesarias y de ejecutar las acciones pertinentes para restaurar, preservar y mantener en buenas condiciones las edificaciones de la Isla San Lucas es ilegítima y vulnera los derechos protegidos en los artículos 50 y 89 de la Constitución Política, razón por la cual lo procedente es declarar con lugar el recurso en todos sus extremos, contra todas las autoridades accionadas.En efecto, con independencia de la discusión relativa a la administración de los bienes de la Isla San Lucas, sobre la cual en esta oportunidad el Tribunal Constitucional omite todo pronunciamiento (en cuanto se trata de un extremo que desborda por completo la naturaleza sumaria de este proceso de amparo) a todas luces es evidente la obligación de todas las autoridades recurridas (incluyéndose desde luego la Municipalidad del Cantón de Puntarenas) de proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación, en estricto apego al derecho protegido en el artículo 89 Constitución Política. IV.- En el caso presente, sin embargo, es evidente que el deterioro de las instalaciones de la Isla San Lucas responde, única y exclusivamente, a la omisión que se ha tenido por demostrada en este proceso de amparo con respecto a todas las autoridades recurridas, las cuales deberán coordinar a futuro sus actuaciones para preservar los recursos y el patrimonio histórico de ese sitio.Queda de manifiesto que la situación impugnada es ilegítima y lesiona el Derecho de la Constitución, razón por la cual lo procedente es declarar con lugar el amparo, no sin antes advertir a los recurridos, con sustento en lo dispuesto por el artículo 50 de la Ley de la Jurisdicción Constitucional, no incurrir a futuro en los actos u omisiones que dieron mérito a la acogida del recurso”. Más determinante aún resultó la Sentencia número 13099-2010 de esta Sala Constitucional al resolver la acción planteada contra el decreto ejecutivo 34282 TUR-MINAE-C, en el cual se abordaba justamente la misma discusión que han traído nuevamente los actuales accionantes que han impugnado la ley 9282. Al respecto de la participación de diversos entes en la administración de un Área Silvestre Protegida dijo esta Sala: “Por ello, no se demuestran incompatibilidades entre la protección al ambiente y la conservación de bienes culturales puestos a disposición de la humanidad, con un proyecto que debe desarrollarse integralmente con el ambiente, que debe ser comprensivo de todos sus componentes, no excluyente.Cabe recordar del escrito de coadyuvancia del Presidente Ejecutivo del Instituto Costarricense de Turismo, donde precisamente coloca entre los propósitos “la puesta en valor” como un aspecto necesario de acceso a las manifestaciones humanas en la Isla. De este modo, aun cuando con las competencias de la Ley Orgánica del Ambiente se autoriza establecer categorías de manejo reguladas como Áreas Silvestres Protegidas mediante Decretos Ejecutivos, ha operado otra de la misma naturaleza con la declaratoria patrimonial contemplada en la Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, mediante las declaratorias respectivas por Decreto Ejecutivo. La convergencia de la Municipalidad de Puntarenas se manifiesta cuando en el ámbito de aplicación de la Ley No. 5469, que materializa el traspaso de la Isla San Lucas a la Municipalidad de Puntarenas, que data desde 1974, es ratificada en la Ley sobre la Zona Marítimo Terrestre, Ley No. 6043 de 2 de marzo de 1977.Precisamente, el artículo 78 de esta Ley establece: “La isla de San Lucas conservará su situación jurídica actual bajo la administración de la Municipalidad de Puntarenas.” Y el numeral 82 de ese mismo texto normativo establece: “Esta ley es de orden público, deroga ... así como todas las demás que se opongan excepto la ley No. 4071 de 22 de enero de 1968 y sus reformas y la Ley No. 5469 de 25 de abril de 1974. ...” Además, es legislación vigente no reformada o derogada expresamente por legislación posterior, por lo que su vigencia se mantiene siempre que no infrinja los principios ambientales y de patrimonio históricoarquitectónico, y no deben contravenir las políticas de los órganos rectores, situación que deberá ser dilucidado por todos los órganos y entes involucrados.”. 6- Sobre las concesiones y la autorización para hacer muelles y atracaderos en parques nacionales Para iniciar nuestro argumento en contra de lo que exponen los accionantes en este apartado, deseo expresar que recién en el año 2020 dentro del Parque Nacional Tortuguero se estrenó el nuevo Centro Operativo Cuatro Esquinas.Con una inversión que supera los ₡1.110 millones, la infraestructura tiene un área total de 1.800 metros cuadrados, incluye albergues para el personal y voluntarios que laboran en el parque nacional, así como salón multiusos, bodegas de almacenamiento y un muelle de embarcaciones. Todo lo anterior construido por el SINAC para uso de sus funcionarios con los fondos públicos provenientes de los tiquetes que pagan los turistas para entrar a ese parque nacional. (Véase la edición del 26 de agosto del 2020 del periódico La República, reportaje intitulado “Minae y Sinac entregan nuevo centro operativo del Parque Nacional Tortuguero”). Este simple ejemplo de nuestra realidad es bastante esclarecedor del error conceptual y jurídico de los accionantes. Los señores accionantes vuelven a su estrategia de magnificar imaginariamente las posibilidades que la ley 9892 otorga a la administración pública que actualmente tiene ese parque.Cuando el artículo 7 de la ley señala la posibilidad de contar en la isla con instalaciones “distintas del servicio de parques” es justamente para que pueda haber un muelle que responda dignamente a las necesidades del turismo, haciéndolo sostenible desde la perspectiva humana y económica. Para aspirar a contar con un atracadero de primer nivel, capaz de atender a las personas con alguna discapacidad o visitantes adultos mayores, el Parque Nacional Isla San Lucas no puede conformarse con recibirlos en un muelle diseñado para atender a los guardaparques del servicio de estas áreas silvestres. Para atender de forma sostenible a los visitantes es preciso prever la posibilidad de tener un muelle diseñado para turismo, lo cual es absolutamente acorde con la realidad. El día de hoy el único muelle de Isla San Lucas es el Muelle histórico de más de cien años, con serias deficiencias estructurales y que representa un peligro para los visitantes, que son la inmensa mayoría de quienes visitan la isla, y no los escasos guardaparques que la habitan.Este artículo está dirigido a contar en el futuro con instalaciones pensadas y diseñadas en la seguridad y comodidad de los visitantes que van a acceder a esa pequeña proporción visitable de la isla (5%), y esa es la recta interpretación de la norma que los accionantes cuestionan. No existe abuso alguno de la discrecionalidad legislativa, sino más bien una disposición acorde con la realidad, con las necesidades de los seres humanos que visitan el parque y con la Constitución Política en sus artículos 50 y 89 y los principios de Libre Configuración, Unidad y Coordinación. Hacer depender al turista únicamente de las instalaciones que quiera y puedan construirse en función sólo del servicio de parques, es un despropósito y un desprecio por la naturaleza intrínsecamente turística sostenible que tienen los parques nacionales desde su concepción. La forma en que el Estado pueda llegar a construir las instalaciones (sea porque los construye directamente ó (sic) porque concesione un atracadero, por ejemplo) no genera lesión constitucional alguna, mientras se realice en el marco de la sostenibilidad y la protección de los recursos naturales e histórico-patrimoniales.Origen de los parques nacionales ligado al turismo. La ley 1917 del 30 de julio de 1955 que crea el Instituto Costarricense de Turismo, declara como parque nacional el área de dos kilómetros alrededor de los cráteres de los volcanes del país, además que se establecen, mediante esta Ley, como parques nacionales los volcanes Turrialba e Irazú. Artículo 6º.- La custodia y conservación de las zonas comprendidas en un radio de dos kilómetros alrededor de todos los cráteres de los volcanes del país, se encomienda en forma absoluta al Instituto Costarricense de Turismo, de acuerdo con el artículo 5º, incisos e) y f) de esta ley y se declaran tales zonas, Parques Nacionales. El Instituto dictará, a fin de lograr la conservación del paisaje, la flora y fauna autóctonas, las regulaciones a que habrán de someterse quienes deseen conocer estos Parques Nacionales, y podrá fijar las tarifas por derecho de visita que estime convenientes, el producto de las cuales se destinará a la conservación y embellecimiento de los mismos y a proporcionar mayores comodidades a los visitantes.El Instituto podrá también construir en ellos caminos, hoteles y otras edificaciones, procurando en todo caso conservar el ambiente y paisaje primitivo del lugar. “Artículo 5º.- El Instituto tendrá las siguientes funciones: (…) f) El mantenimiento de Parques Nacionales, en los lugares que juzgue convenientes. Se considerará motivo de utilidad pública o interés social para los fines de la expropiación correspondiente, la resolución dictada por el Instituto respecto a la declaración de zonas como Parques Nacionales”. Dicha norma se mantiene vigente. En la versión vigente de dicha ley 1917 se establece: “Artículo 64.- (El párrafo primero fue derogado por el artículo 1º de la ley Nº 4071 de 22 de enero de1968, "Declara Zona Urbana de Ciudad de Puntarenas y Reforma Otras Leyes") Se declara zona reservada con destino a Parque Nacional que se pondrá bajo el cuidado del Instituto de Turismo, la zona atlántica comprendida entre la parte alta del río Cerere (afluente del Estrella), aguas arriba de su confluencia con el Cusuco, hacia el Este, comprendiendo los Ríos Aguila (sic) y Chey (tributario del Telire).“Transitorio IV.- El Estado, por medio del Instituto Geográfico Nacional, procurará, dentro del plazo más breve posible, localizar las zonas del territorio nacional que de acuerdo con el artículo 5º, inciso f) de esta ley, habrán de declararse Parques Nacionales”. Con la anterior exposición de algunas normas quiero enfatizar que dentro de la conceptualización de los Parques Nacionales en Costa Rica la legislación ha ligado siempre su existencia a la visitación turística. Sería imposible materialmente sostener el costo de nuestros parques nacionales sin el ingreso que representan los miles de millones de colones que pagan por año los turistas. Por ende resulta obvio que todos nuestros parques nacionales deben tener las instalaciones que permitan la atención humana que estos turistas requieren para su seguridad y comodidad, como lo son los muelles o atracaderos turísticos en los sitios cuyo acceso es a través del agua, como en San Lucas.Según el sitio web del SINAC en el año 2019 los Parques Nacionales fueron visitados por 2.263.231 turistas. En el 2020 (en medio de la pandemia) fueron 1.176.464. En el 2021 pagaron su entrada 1.705.228 visitantes. Y en el 2022 compraron su boleto para ingresar a nuestros parques 2.346.028 turistas. Del mes de abril del año 2020 al mes de diciembre del 2022 los turistas extranjeros y nacionales pagaron al SINAC la suma de ₡ 20.161.987.824 (Veinte mil ciento sesenta y un millones novecientos ochenta y siete mil ochocientos veinticuatro colones). Repito, mantener los parques sin turismo es económicamente inviable. Y mantener abiertos esos parques al turismo sin instalaciones adecuadas es inhumano y contrario a nuestra legislación. Los argumentos de los accionantes al respecto carecen de todo sentido y no se ajustan al Derecho de la Constitución ni a la realidad del país. 7- Del supuesto financiamiento “incierto” del parque El financiamiento previsto por la Ley 9892 es muy superior al que tienen actualmente los otros parques nacionales.La ley permite la aportación de recursos por parte del Estado y de las entidades privadas así como de donaciones internacionales. Pero principalmente señala que este parque recibirá los fondos que ordinariamente reciben los parques nacionales por parte del SINAC. Consideramos suficiente la mera transcripción de las normas correspondientes para demostrar lo infundado que resulta el argumento de los accionantes: “ARTÍCULO 17- Financiamiento. El Parque Nacional Isla San Lucas dispondrá de recursos financieros que le permitan ejercer sus mandatos con agilidad y eficiencia. Estos incluirán los recursos que le correspondan por ley del Sistema Nacional de Áreas de Conservación (Sinac), transferencias de los presupuestos de la República o donaciones de cualquier persona física o jurídica, así como los fondos propios que genere el ingreso al parque, la utilización de sus servicios, los cánones por concesiones y permisos y, en general, por el pago de las actividades realizadas dentro del parque.Los recursos regulados en la presente ley así como todos aquellos que produzca el parque, necesaria y exclusivamente serán invertidos en el mismo parque nacional. La fiscalización estará a cargo de la Contraloría General de la República”. “ARTÍCULO 18- Autorización para donar y subvencionar. Se autoriza a todo el sector público estatal, no estatal y financiero para que haga donaciones, inversiones e incluya subvenciones presupuestarias a favor del Parque Nacional Isla San Lucas. El Instituto Costarricense de Turismo (ICT) podrá transferir recursos económicos a la Junta Directiva del Parque Nacional Isla San Lucas para la realización de sus inversiones en desarrollo y actividades ordinarias; asimismo, podrá diseñar y realizar la promoción y el mercadeo para la visitación del parque. Podrá recibir, la Junta Directiva, donaciones de parte de organismos internacionales y gobiernos extranjeros interesados en coadyuvar en los fines del parque”.De la simple lectura de los anteriores artículos se desprende con claridad la existencia de suficientes previsiones para el sostenimiento económico de este Parque Nacional. Conclusiones La Ley 9892 está sustentada en elementos materiales, históricos. naturales, normativos y jurisprudenciales de esta Sala, que atienden a la particular naturaleza de la Isla San Lucas. Ello consta en la exposición de motivos del proyecto de ley respectivo. El espacio para la visitación turística señalado en la Ley 9892 es el mismo espacio que históricamente contiene las instalaciones del antiguo penal más los senderos, el acceso acuático a la isla, la playa de El Coco y otros espacios utilizados para la visitación de turistas desde hace décadas, todo avalado de igual forma por el Plan de Manejo de la Isla emitido por el SINAC y el Plan Maestro de Desarrollo Turístico Sostenible elaborado por el ICT. La creación del Parque Nacional convirtió la mayor parte del Refugio de Vida Silvestre en Parque, pero no derogó la protección existente sobre las áreas no contempladas dentro del mismo, las cuales siguen teniendo la protección que ostentan desde el 2001 y el 2008 con los decretos respectivos.La creación del parque en modo alguno disminuyó el area (sic) protegida. A partir de la ley 9282 coexisten un Área de Parque Nacional (constituido por la totalidad de la Isla San Lucas más su contorno acuático hasta una profundidad de 3 metros) con los islotes cercanos a la isla incorporados como Refugio en el decreto del 2008 más el resto de las aguas que se encontraban y continúan estando protegidas por dicha norma. La existencia de un órgano perteneciente al MINAE conformado por el jerarca de ese ministerio junto con los jerarcas de Cultura, ICT y Municipalidad de Puntarenas responde de manera coherente a los principios constitucionales de Coordinación y de Unidad, así como al principio de Libre Configuración. Todo ello dicho por esta Sala al respecto de la administración conjunta de Isla San Lucas desde la sentencia 13099 del año 2010. Por todos los motivos expuestos por esta Alcaldía Municipal solicito se declaren SIN LUGAR las acciones incoadas contra la citada Ley 9892 y se nos permita seguir trabajando en pro de los ciudadanos de Puntarenas y las mejores oportunidades económicas para su desarrollo integral en armonía con el ambiente y con su patrimonio histórico y cultural”.
168. 169Por escrito incorporado al expediente digital el 2 de mayo de 2023, Magda Inés Rojas Chaves, en su condición de procuradora general adjunta de la República, menciona que comparecerá a la vista del 4 de mayo de 2023 junto con Elizabeth León Rodríguez.
169. 170El 4 de mayo de 2023 se incorporó al expediente una constancia de vista en la que se lee: “El suscrito, en mi calidad de Secretario de la Sala Constitucional, hace constar que a las ocho horas con treinta y cinco minutos del cuatro de mayo de dos mil veintitrés, dio inició la audiencia oral señalada dentro de la acción de inconstitucionalidad que se tramita bajo el expediente 21-005756-0007-CO. En dicha diligencia estuvieron presentes los magistrados Fernando Castillo Víquez (Presidente), Paul Rueda Leal, Luis Fdo. Salazar Alvarado, Jorge Araya García, Anamari Garro Vargas, Hubert Fernández Argüello y José Roberto Garita Navarro. Asimismo asistieron Álvaro Sagot Rodríguez y Anais Villalobos Kong, en su calidad de accionantes, Magda Inés Rojas y Elizabeth León, representantes de la Procuraduría General de la República, Freddy Camacho Ortiz, director del Departamento Legal de la Asamblea Legislativa, Vladimir Cubillo Marenco, asesor legal del Ministerio de Cultura y Juventud, Rafael Gutiérrez Rojas, viceministro de Ambiente y Energía, Karen Quesada Fernández, asesora legal del Sistema Nacional de Áreas de Conservación (SINAC), William Rodríguez López, presidente ejecutivo y José Francisco Coto Meza, asesor legal de la Presidencia Ejecutiva del Instituto Costarricense de Turismo, Wilber Madriz Arguedas, alcalde y Carlos Ricardo Benavides Jiménez, asesor legal de la Municipalidad de Puntarenas, José Correu, asesor de la Oficina Regional de la Unión Internacional de Conservación de la Naturaleza y Jorge Alberto Sendero Hülssner, en su calidad de coadyuvante.El magistrado presidente de la Sala confirió a los accionantes un espacio de quince minutos para hacer la exposición de sus argumentos, mientras que al resto de las partes le otorgó un plazo de diez minutos, salvo para el coadyuvante, a quien se le brindó un espacio de cinco minutos Durante esta etapa, el señor Correu indica que cometió un error en el informe que rindió al Tribunal, por lo que presentará la corrección respectiva al expediente. Por su parte, el señor Serendero indicó que cedía su espacio de tiempo al accionante Sagot Rodríguez, sin embargo, dicha petición no fue aceptada por el magistrado presidente de la Sala, por considerar que de acoger el requerimiento planteado, se lesionaría el principio de igualdad de armas. Concluida esta etapa, se confirió un espacio hasta por tres minutos a las partes para que ejercieran su derecho de réplica. A las diez horas con treinta minutos, el magistrado presidente de la Sala dispuso un receso de quince minutos.Al ser las diez horas con cuarenta y ocho minutos reinició la audiencia y los magistrados Rueda Leal, Fernández Argüello, Castillo Víquez, y la magistrada Garro Vargas procedieron a hacer consultas a las partes. Terminada esta etapa, y a solicitud de parte, el magistrado presidente otorgó un minuto a la accionante Sagot Rodríguez y al señor Carlos Ricardo Benavides Jiménez, para que emitieran consideraciones finales. Por último, el magistrado presidente dio por terminada la audiencia a las once horas con cincuenta minutos. Es todo”.
170. 171Por escrito incorporado al expediente digital el 8 de mayo de 2023, se aportó prueba al expediente.
171. 172Por escrito incorporado al expediente digital el 9 de mayo de 2023, José Francisco Coto Meza, en su condición de apoderado general judicial del ICT, aporta prueba para mejor resolver e indica: “la citada resolución fue emitida a solicitud del SISTEMA NACIONAL DE ÁREAS DE CONSERVACIÓN, a efectos de gestionar la viabilidad ambiental del atracadero Isla San Lucas. La viabilidad técnica fue debidamente otorgada por SETENA. Lo anterior demuestra claramente que el SINAC sí solicitó el desarrollo de un atracadero como infraestructura necesaria en el desarrollo, mantenimiento y administración de la citada Isla”.
172. 173Por escrito incorporado al expediente digital el 10 de mayo de 20223, Wilber Madriz Arguedas, en su condición de alcalde de Puntarenas, expone: “me permito remitir copia electrónica de los diferentes documentos que ofrecimos aportar durante la Vista celebrada por parte de esa Sala Constitucional el pasado jueves 04 de mayo del 2023. 1. Actas de la Junta Directiva del Parque Nacional Isla San Lucas desde el 2020 hasta el 2023. En dichas actas se aprecia el trabajo armonioso y la inversión conjunta de las distintas instituciones que componen la Junta Directiva conformada por la Ley 9892. Además pueden notar la permanente participación del SINAC y de su órgano regional ACOPAC (Área de Conservación del Pacífico Central), como órgano técnico asesor de esa Junta Directiva. Para ser más precisos, se puede constatar la participación directa de los personeros de dicho órgano en las sesiones 01/20, 02/20, 01/21, 03/21, 05/21, 06/21, 07/21, 01/22, 02/22, 05/22, 07/22, 09/22, 10/22, 01/23 y 02/23, además de que el señor Viceministro del Ministerio del Ambiente (MINAE) presidió el 100% de las sesiones de esa Junta Directiva, en compañía de sus asesores.En las actas resulta constatable la inexistencia de conflictos en la conservación y manejo de los recursos naturales o de los culturales. Por el contrario, resulta evidente la armonización de las labores de todas las entidades participantes y el apego estricto a los diversos y meticulosos estudios técnicos cuya existencia ha quedado plasmada en dichas actas. 2. Oficio número CR-INCOP-PE-0056-2022, del 27 de enero del 2022, del Instituto Costarricense de Puertos del Pacífico (INCOP), en el que se hace un recuento de las inversiones llevadas a cabo por ese instituto en el Parque Nacional Isla San Lucas, por un monto total de 984.604.910 (Novecientos ochenta y cuatro millones seiscientos cuatro mil novecientos diez colones), inversiones que contaron con la aprobación del SINAC y del Ministerio de Cultura, así como con el trámite respectivo de permisos por parte de la Secretaría Técnica del Ambiente (SETENA).Llama la atención el contenido de las páginas 10 y 11 en las que se relata que el Proyecto de construcción del Atracadero del Parque Nacional Isla San Lucas fue presentado por la Directora del SINAC: “3.2 Atracadero en la Isla San Lucas. Este proyecto fue presentado por la Directora Ejecutiva del SINAC mediante formulario debidamente suscrito el día 29 de setiembre de 2020, se ubica de primer lugar en el Banco de Proyectos del Fideicomiso, con un puntaje de priorización de 87.5, este analizado, valorado y brindado por el Instituto Costarricense de Turismo (ICT). El ICT durante el año 2021 llevó a cabo la licitación para la contratación de los servicios profesionales para la elaboración de los diseños, planos, presupuesto detallado de obra y cronograma. No obstante, a pesar de haberse efectuado tres licitaciones para la contratación, las mismas no cumplieron con los requisitos mínimos de admisibilidad establecidos en el cartel, por lo cual fueron declaradas desierta.Se prosiguió durante el año anterior a licitar nuevamente, es decir se licito por cuarta ocasión a inicios del presente año, y se giró el criterio técnico de la unidad ejecutora para la recomendación de adjudicación, se espera en caso de resultar favorable todo el proceso de contratación, poder iniciar dicha ejecución durante el primer trimestre, para lo cual se prevé un presupuesto de ¢51,480,000.00 millones de colones. Una vez concluida esa etapa y habiéndose entregado a INCOP la documentación anteriormente señalada, y suscrito el convenio respectivo entre las partes se procederá a la contratación de una empresa para la presentación ante SETENA del proyecto para la obtención de la viabilidad ambiental, si se logra la certificación ambiebtal (sic), se procedería a la contratación de una empresa que construya el proyecto el cual se llevará a cabo mediante licitación pública, siempre y cuando sea aprobado por la junta directiva del INCOP”. 3.Presentación del Sistema Nacional de Áreas de Conservación (SINAC) del Estudio para el Manejo de Flujos de Visitantes en el Parque Nacional Isla San Lucas, del año 2021 realizada por la MSc. Rosa Montero del Área de Conservación Pacífico Central (ACOPAC) del SINAC, con los datos aportados por el también funcionario del ACOPAC Olger Núñez. Como se puede apreciar en dicho estudio, el propio SINAC señala el requerimiento de un nuevo Muelle, un Centro de Control y Atención de Visitantes y una Torre de 30 metros de alto para el servicio de internet dentro del Parque Nacional, entre otras necesidades de infraestructura, como también existen en muchos otros parques nacionales de Costa Rica. 4. Noticias de los medios periodísticos La República y El Mundo sobre la construcción de un Muelle para embarcaciones y otras obras en el Parque Nacional Tortuguero, instalación construida por el SINAC con un costo superior a los mil millones de colones e inaugurada en agosto del año 2020, para uso de sus funcionarios y de los turistas”.
173. 174Por escrito incorporado al expediente digital el 11 de mayo de 2023, el accionante Álvaro Sagot Rodríguez expone: “A modo de una síntesis de la audiencia y la nueva prueba: SOBRE LOS FINES COMERCIALES EN PARQUES NACIONALES Es importante dejar claro que existen normas de rango legal, vinculadas al numeral 50 y 89 constitucionales, que prohíben expresamente fines comerciales en parques nacionales, como en la Ley del Servicio de Parques Nacionales, que establece en el numeral 8 inciso 15: “Artículo 8.- Dentro de los parques nacionales, queda prohibido a los visitantes: … 15) Realizar cualquier tipo de actividad comercial...” Por su parte el artículo 3 in fine, de la Convención para la Protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América, establece que es totalmente prohibido cualquier uso comercial dentro de un Parque Nacional. La norma señala: “ARTICULO 3 Los Gobiernos Contratantes convienen en que los límites de los parques nacionales no serán alterados ni enajenada parte alguna de ellos sino por acción de la autoridad legislativa competente.Las riquezas existentes en ellos no se explotarán con fines comerciales.” No obstante lo anterior, la ley cuestionada señala en varias normas que se permiten los convenios comerciales en servicios tanto esenciales como no esenciales para que se cumplan los fines turísticos comerciales de la ley y es que esa apertura absoluta podría ser generadora de significativos impactos ambientales negativos, en un sitio destinado por ley a la protección. Entonces la duda que siempre ha estado presente es: ¿Por qué si se querían fines comerciales, no se conservó la condición de reserva, donde sí están permitidos los fines comerciales previo permiso del SINAC? Incluso tenemos que conforme a la actual ley, pronto podría existir invasión masiva en la parte marina del parque nacional con jets skis y otras embarcaciones recreativas, o en la terrestre de restaurantes de Burger King, KFC, etc, pues el que puede lo más, puede lo menos, como lo dice el viejo adagio y la verdad se permite de todo y queda ello bajo los criterios de empresarios, cámaras turísticas, políticos, la toma de decisiones y por supuesto que el SINAC quedó fuera, ya que fue expulsado por los diputados, no obstante lo que se señala en la Ley de la Biodiversidad sobre la administración de las áreas silvestres protegidas en general.Ahora, ¿Si los diputados querían apertura comercial en servicios esenciales y en los no esenciales, por qué no modificaron previamente la Ley del Servicio de Parques Nacionales, o por qué no denunciaron las convenciones que prohíben dichos fines comerciales en parques? Pues la respuesta es muy sencilla: los diputados improvisaron sin mediar los estudios requeridos. Y es que en el artículo 14 inciso g, entre otros de la ley cuestionada, se dice que le corresponde al fideicomiso: “g) Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes.” Por ello es procedente la inconstitucionalidad y la inconvencionalidad. SOBRE LA INFRAESTRUCTURA Sobre infraestructura también existe una gran apertura que trasciende las instalaciones de guarda parques y servicios básicos o de servicios no esenciales y para prueba de ello véase la norma 16 de la ley que dispone: “El Parque Nacional Isla San Lucas podrá desarrollar toda la infraestructura necesaria para facilitar el turismo sostenible, incluyendo la dotación de agua, electricidad telecomunicaciones. higiene y saneamiento, muelles. atracaderos, servicios de alimentación y vías de acceso, información y comunicación en diversos formatos, así como la que estime pertinente para el provecho de los visitantes y asegurar el disfrute y apreciación de la riqueza histórica, arquitectónica y natural del parque” Ahora, junten esas dos aperturas, de hacer todo tipo de infraestructura, con la libertad de establecer concesiones y contratos comerciales antes señalada y ahí tendrán el escenario perfecto para crear un distorsionado parque diversiones urbano, en un sitio, cuya naturaleza jurídica es de protección, pues así se establece a nivel interno, como convencional.Nótese que la norma 7 de la ley señala en su segundo párrafo: “Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques” Por ello, si el que puede lo más puede lo menos, tenemos que con la ley se está produciendo una apertura que no rima con lo permitido en un parque nacional. Resaltamos con lo expuesto que es un peligro que la ley en su totalidad siga vigente, pues atenta contra lo establecido y lo peor es que para ello NUNCA EXISTIERON ESTUDIOS, es decir,además de inconstitucionalidades, existen inconvencionalidades que deberán ser declaradas, también se violenta el principio de tutela científica y el principio de progresividad. Y por supuesto que caemos en regresiones por la desprotección y no observar las normas vigentes expresas. Para esa zona turística “sostenible” no encontrarán nada que la justifique y menos con fundamento en nuestras normas, como la del Servicio de Parques Nacionales que sigue vigente, o la Convención para la Protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los países de América.La verdad, nunca hubo un estudio que valorara el impacto ambiental dentro del parque y ese solo hecho no se justifica con el argumento de la búsqueda de “una nueva forma de gobernanza en los parques nacionales” como se dijo insistentemente desde la municipalidad de Puntarenas. Por ello la norma completa tiene claramente un espíritu economicista comercial contrario a normas expresas nacionales y convencionales y así debería declararse. SOBRE LAS FORMAS DE MANEJO DE DOS DIFERENTES ÁREAS SILVESTRES PROTEGIDAS DE NATURALEZA JURÍDICA MUY DISPARES Es claro que, con la nueva delimitación generada por la ley cuestionada, se ha fraccionado SIN ESTUDIOS la reserva y el parque sin saberse cuáles fueron los motivos de esa decisión ni tampoco se saben cuáles serán las consecuencias de esta forma binaria de administrar. A la fecha los efectos, sociales, económicos y ambientales se desconocen y ustedes no los escucharon ni en la audiencia.Por un lado, se dice ahora y de forma emergente que existe un parque nacional que colinda con la reserva vigente, pero lo único que se aprecia es la improvisación legislativa. Incluso a la fecha desconocemos el por qué en la administración del SINAC quedó por fuera. Es decir, ahora por la falta de justificación imperan varias dudas: 1. ¿Qué justificó la medida de 3 metros de profundidad del parque? 2. ¿Por qué no se señaló en la ley que se debía partir de la marea baja, o de la marea alta, para establecer el inicio y fin de la parte marina del parque? 3. ¿Cuál es el impacto social y económico (entre los pescadores artesanales por ejemplo) de la nueva demarcación? 4. ¿Se afecta el derecho humano a la alimentación1 de los pescadores artesanales con la nueva división entre las dos áreas silvestres protegidas? 5. ¿Con base a cuáles estudios consideraron los diputados que no iban a haber daños en la economía de los pescadores artesanales, que antes podían llegar a pescar desde la parte territorial de la isla?6.¿Quién asumirá los daños económicos y de alimentación de los pescadores artesanales? 7. ¿En dónde quedan los humedales, que por un lado son sitios de alta fragilidad, que se extienden hasta los 6 metros desde marea baja, pero ahora el parque llega hasta los 3 metros (sin señalarse si es de marea baja o marea alta) (sic) 8. Como lo señala el representante de la UICN, el señor Courrou, ¿dónde están los estudios que determinan los impactos ambientales en los límites de las dos áreas silvestres protegidas, que como es claro, tienen diferenciadas sus categorías de manejo, pero respecto a ellas no ha hecho nada? 9. ¿Se violenta la ley el principio de objetivación y el principio de progresividad al establecerse los límites del nuevo parque? 10. Finalmente, tenemos, como señalamos en el escrito de la acción, que se delimitó y georeferenció un área turística sostenible con fines económicos y culturales, pero resulta que la isla está plagada de otros sitios con riqueza arqueológica y cultural, pero no quedaron contempladas dentro de esa protección especial y no nos explicamos el por qué y es que aunque estén en un parque nacional, no se debió de haber fragmentado, diferenciado, excluido y designado un área como comercial turística con especial protección a bellezas y tesoros culturales y arqueológicos, pues ello no tiene justificación técnica. 11.Valedera es la pregunta sobre los restantes sitios arqueológicos pues se desconoce si estos otros lugares recibirán la misma asistencia profesional y económica, que las áreas del reclusorio, pues al parecer conforme a la ley, solo la parte penitenciaria la de interés destacado. 12. Es claro que la ley genera muchas incertidumbres que no se resuelven ni con un voto interpretativo de varias normas, pues toda la ley está plagada de inconstitucionalidades y de inconvencionalidades. Ya terminando, pedimos observar, que desde que estaba en formación la ley, desde el SINAC se emitió criterio que señalaba que para el proyecto de ley NO existían estudios en diversas áreas y por ello es fundamental considerar ese documento recién aportado por las autoridades a este expediente, pues evidencia lo que señaló la representante del SINAC, el representante del MINAE y el de la UICN”.
174. 175Por escrito incorporado al expediente digital el 15 de mayo de 2023, se apersona Madga Inés Rojas Chavez, en su condición de Procuradora General Adjunta. Expone: “Tal y como se indicó en el informe de 22 de abril de 2021 y en nuestra intervención en la vista oral, la Procuraduría estima que la Ley no. 9892 violenta el artículo 50 constitucional por quebranto de los principios de progresividad y no regresión en materia ambiental, de objetivación de la tutela ambiental y de razonabilidad. Para llegar a esa conclusión, es necesario realizar un repaso sobre el régimen de las áreas silvestres protegidas y las particularidades de la isla San Lucas, como lo hicimos en la opinión jurídica no. OJ-082-2020 de 9 de junio de 2020, referida al proyecto de ley no. 21287 que dio origen a la ley impugnada. I. Sobre el régimen de las áreas silvestres protegidas. Según lo dispuesto por el artículo 58 de la Ley de Biodiversidad (no. 7788 de 30 de abril de 1998) un área silvestre protegida es una zona geográfica delimitada, constituida por terrenos, humedales y porciones de mar, que se declara como tal por representar un significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural; y que están dedicadas a conservar y proteger la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general.El artículo 32 de la Ley Orgánica del Ambiente (no. 7554 de 28 de setiembre de 1995), señala, como tipos o categorías de manejo de áreas silvestres protegidas, las reservas forestales, parques nacionales, reservas biológicas, refugios nacionales de vida silvestre, humedales y monumentos naturales. Con base en lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente, 39 inciso i) de la Ley Forestal (no. 7575 de 13 de febrero de 1996) y 2° de la Ley de Conservación de la Vida Silvestre (no. 7317 de 30 de octubre de 1992), en reiteradas oportunidades hemos considerado que las áreas silvestres protegidas forman parte del patrimonio natural del Estado. (Por ejemplo, véanse nuestros pronunciamientos nos. OJ069-2008 de 12 de agosto de 2008, C-134-2016 de 8 de junio de 2016, OJ-088-2018 de 18 de setiembre de 2018, OJ-036-2019 de 20 de mayo de 2019, entre otros). Y así lo ha dispuesto también la Sala Constitucional, al indicar que: “El Patrimonio Natural del Estado es un bien de dominio público cuya conservación y administración están encomendadas, por la ley, al Ministerio del Ambiente y Energía, mediante el Sistema Nacional de Áreas de Conservación (Ley Forestal, arts. 6 inc. a y 13 pfo.2°, y 14; Ley Orgánica del Ambiente, artículo 32, pfo. 2°).Lo integran dos importantes componentes: a) Las Áreas Silvestres Protegidas, cualquiera sea su categoría de manejo, declaradas por Ley o Decreto Ejecutivo: reservas forestales, zonas protectoras, parques nacionales, reservas biológicas, refugios nacionales de vida silvestre, humedales y monumentos naturales (Ley Forestal 7575, arts. 1°, pfo. 2°, 3° inciso i; Ley Orgánica del Ambiente 7554, artículo 32; Ley de Biodiversidad N° 7788, arts. 22 y sigts. y 58; Ley del Servicio de Parques Nacionales N° 6084, artículo 3° incs. d y f, en relación con la Ley Orgánica del MINAE N° 7152 y su Reglamento; Ley de Conservación de la Vida Silvestre N° 7317, artículo 82, inciso a). b) Los demás bosques y terrenos forestales o de aptitud forestal del Estado e instituciones públicas (artículo 13 de la Ley Forestal), que tienen una afectación legal inmediata. Para la zona marítimo terrestre, la misma Ley 6043 (artículo 73) excluye de su ámbito las Áreas Silvestres Protegidas y las sujeta a su propia legislación.El resto de áreas boscosas y terrenos de aptitud forestal de los litorales, están también bajo la administración del Ministerio del Ambiente y se rigen por su normativa específica (Ley Forestal, artículo 13 y concordantes). (Voto no. 16975-2008 de las 14 horas 53 minutos de 12 de noviembre de 2008. Reiterado en los votos nos. 17650-2008 de las 12 horas y 23 minutos de 5 de diciembre de 2008, 16938-2011 de las 14 horas 37 minutos de 7 de diciembre de 2011 y 17397-2019 de las 12 horas 54 minutos de 12 de setiembre de 2019). La inclusión de las áreas silvestres protegidas dentro del patrimonio natural del Estado tiene consecuencias significativas. En primer lugar, implica que, de conformidad con los artículos 32 párrafo segundo de la Ley Orgánica del Ambiente, 6 inciso a) y 13 párrafo segundo de la Ley Forestal, y 22 y 28 de la Ley de Biodiversidad, dichas áreas deben ser administrados por el Sistema Nacional de Áreas de Conservación, con exclusión de cualquier otro ente público.(Véase al respecto el voto de la Sala Constitucional no. 17397-2019 ya citado). Y, en segundo término, al formar parte de ese patrimonio y según lo dispuesto en los artículos 18 de la Ley Forestal y 11 de su Reglamento, en las áreas silvestres protegidas solamente es posible ejecutar actividades de capacitación, investigación y ecoturismo, conforme lo establezca el plan de manejo correspondiente, así como obras para el aprovechamiento de agua para consumo humano, según reforma practicada recientemente. (Véanse nuestros pronunciamientos nos. C-103-1998 de 8 de junio de 1998, C-016-2002 de 15 de enero de 2002, C-134-2016 de 8 de junio de 2016, OJ-0272018 de 28 de febrero de 2018, OJ-036-2019 de 20 de mayo de 2019, entre otros). Al respecto, la Sala Constitucional ha indicado que el uso de los terrenos de las áreas silvestres protegidas está limitado a lo “dispuesto en la ley y sus reglamentos; y sus usos están destinados básicamente a labores de investigación, capacitación y ecoturismo, previamente aprobados por el Ministerio del Ambiente y Energía, no por el municipio (ver artículo 18 de la Ley Forestal citado)”.(Voto no. 19776-2014 de las 10 horas 30 minutos de 3 de diciembre de 2014). Y que, en ese sentido, el plan de manejo “reviste importancia como herramienta para el resguardo del recurso natural de un área silvestre protegida, así como para encausar las actividades de investigación, protección, capacitación y ecoturismo que se pueden llevar a cabo en propiedad del Estado.” (Voto no. 2752-2014 de las 9 horas 15 minutos de 28 de febrero de 2014. En igual sentido véanse los votos nos. 2020-2009 de las 8 horas 30 minutos de 13 de febrero de 2009, 15070-2011 de las 10 horas 41 minutos de 4 de noviembre de 2011, 12716-2012 de las 16 horas 01 minuto de 12 de setiembre de 2012, entre otros). El plan de manejo, según el artículo 3° del Reglamento a la Ley de Biodiversidad, es “el instrumento de planificación que permite orientar la gestión de un área silvestre protegida hacia el cumplimiento de sus objetivos de conservación a largo plazo.Se fundamenta en líneas de acción estratégicas a mediano plazo y en objetivos de manejo para los elementos naturales y culturales incluidos dentro del área, así como en la relación de estos últimos con su entorno socio ambiental. Es la base para el desarrollo de otros instrumentos de planificación y reglamentación de las Áreas Silvestres Protegidas.” Resulta, entonces, que el plan de manejo es el instrumento a través del cual el Sistema Nacional de Áreas de Conservación, como administrador de las áreas silvestres protegidas, ejerce sus labores de planificación y zonificación de esos espacios, es decir, de organizar el territorio según sus características biofísicas y determinar los usos y actividades permitidas o prohibidas dentro del área silvestre y los sectores específicos en los que pueden desarrollarse las diferentes actividades permitidas. Al amparo de lo dispuesto en el artículo 18 de la Ley Forestal, el artículo 11 de su Reglamento (Decreto Ejecutivo no. 25721 de 17 de octubre de 1996) establece que en el patrimonio natural del Estado solo se permitirá realizar actividades de capacitación, ecoturismo e investigación y que esas actividades estarán sujetas a lo establecido en el plan de manejo del Área Silvestre Protegida.También dispone que, en las áreas silvestres protegidas, excepto en los parques nacionales y reservas biológicas, se pueden autorizar las actividades de ecoturismo a particulares, únicamente en las áreas señaladas al efecto por el SINAC, y que, el SINAC podrá autorizar la realización de las actividades permitidas mediante el otorgamiento de permisos de uso y el cobro del canon respectivo. Según esa misma norma, las actividades de ecoturismo que se pueden autorizar son senderos o caminos rústicos, áreas para acampar, miradores, canopy, puentes colgantes, rapel, áreas para descanso, áreas para almuerzo, kayak, canotaje, ciclismo recreativo, pesca y albergues. Por su parte, acorde con esas limitaciones, en el artículo 82 de la Ley de Conservación de la Vida Silvestre se establece que en los refugios de vida silvestre estatales no se pueden llevar a cabo proyectos de desarrollo y aprovechamiento de recursos naturales, lo cual se reitera en el artículo 70 del Reglamento a la Ley de Biodiversidad (Decreto no. 34433 de 11 de marzo de 2008) que dispone que, en esos refugios, solo pueden llevarse a cabo actividades de capacitación, investigación y ecoturismo.En cuanto a las actividades que pueden desarrollarse en los parques nacionales y reservas biológicas, el artículo 58 de la Ley de Biodiversidad establece que las prohibiciones al respecto son las que establece la Ley de Creación del Servicio de Parques Nacionales (no. 6084 de 24 de agosto de 1977). Dicha ley, en los artículos 8, 10 y 12 dispone que en esos espacios está prohibido realizar cualquier tipo de actividad comercial, agrícola o industrial, que la actividad de pesca está limitada a la artesanal y deportiva cuando se compruebe que no cause alteraciones ecológicas y que no pueden otorgarse concesiones de tipo alguno para la explotación de productos, ni otorgarse permiso para establecer otras instalaciones, distintas a las del Servicio de Parques Nacionales. También resulta relevante lo dispuesto en el artículo 3° de la Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América (aprobada mediante Ley no. 3763 de 19 de octubre de 1966) en cuanto a que las riquezas existentes en los parques nacionales no podrán explotarse con fines comerciales.Con base en estas últimas disposiciones, se ha indicado que los Parques Nacionales y las Reservas Biológicas son áreas silvestres de conservación absoluta. (Sala Constitucional, voto no. 16975-2008 de las 14 horas 53 minutos de 12 de noviembre de 2008. Además, véanse nuestros pronunciamientos nos. C-228-1998 de 3 de noviembre de 1998, C-297-2004 de 19 de octubre de 2004, OJ-236-2003 17 de noviembre de 2003, OJ-093-2004 de 19 de julio de 2004, OJ-069-2008 de 12 de agosto de 2008 y OJ-027-2018 de 28 de febrero de 2018). Por lo anterior, es entendible que el artículo 11 del Reglamento a la Ley Forestal excluya a los parques nacionales y reservas biológicas de la posibilidad de autorizar, mediante permisos de uso, la realización de las actividades de ecoturismo allí dispuestas, como senderos o caminos rústicos, áreas para acampar, miradores, canopy, puentes colgantes, rapel, áreas para descanso, áreas para almuerzo, kayak, canotaje, ciclismo recreativo, pesca y albergues.Ahora bien, de conformidad con el artículo 39 de la Ley de Biodiversidad, en las áreas silvestres protegidas, incluidos los parques nacionales y reservas biológicas, el Consejo Nacional de Áreas de Conservación está facultado para aprobar los contratos o concesiones de servicios y actividades no esenciales, tales como estacionamientos, servicios sanitarios, administración de instalaciones físicas, servicios de alimentación, tiendas, construcción y administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación respectiva. Esas concesiones no pueden incluir el ejercicio de las responsabilidades propias del MINAE como la definición, el seguimiento de estrategias, los planes y los presupuestos de las Áreas de Conservación; ni tampoco la autorización de edificaciones privadas. Ese artículo dispone expresamente que esas “concesiones y contratos podrán otorgarse única y exclusivamente a asociaciones de desarrollo comunal, cooperativas, microempresas inscritas en el Ministerio de Economía, Industria y Comercio (MEIC) u organizaciones sociales nacionales sin fines de lucro que tengan objetivos de apoyo a la conservación de los recursos naturales, que incorporen la gestión ambiental dentro de los procesos y área concesionada y con su personería jurídica vigente, siempre que se encuentren integradas y controladas directamente por habitantes de las comunidades ubicadas en la zona de influencia de la respectiva área silvestre protegida.” El artículo 40 establece que las concesiones y los contratos que se autorizan en el artículo 39 deberán basarse en las estrategias y los planes aprobados en primera instancia por el Consejo Regional y en forma definitiva por el Consejo Nacional de Áreas de Conservación, conforme a las leyes y políticas establecidas, y que la formulación de estrategias y planes de las áreas protegidas, en ningún caso se verá afectada por consideraciones que no sean estrictamente técnicas.Según el artículo 57 del Reglamento a la Ley de Biodiversidad el otorgamiento de contratos de servicios no esenciales debe respetar lo dispuesto en el artículo 39 de la Ley de Biodiversidad y, para la definición de otros servicios no esenciales no mencionados por la ley, el Consejo Regional de Áreas de Conservación podrá solicitar el criterio del Comité Científico Técnico del Área de Conservación correspondiente. Luego, el artículo 58 de ese Reglamento establece que para el otorgamiento de concesiones de servicios no esenciales en áreas silvestres protegidas, el Plan General de Manejo del área silvestre protegida será la herramienta técnica que deberá utilizarse como base, pudiendo considerarse otros instrumentos de planificación complementarios. Y que las áreas silvestres protegidas que no cuenten con un instrumento de planificación deberán realizar los estudios técnicos que sustenten el otorgamiento de la concesión.Puede notarse que la figura de las concesiones de servicios no esenciales es diferente de la figura del permiso de uso que contempla el artículo 11 del Reglamento a la Ley Forestal para autorizar las actividades de capacitación, investigación y ecoturismo dispuestas en el artículo 18 de la Ley Forestal. La primera es para brindar servicios complementarios al fin público de conservación y uso sostenible de la biodiversidad comprendida dentro de las áreas silvestres protegidas estatales. Es decir, se trata de servicios que podría brindar directamente el Sistema Nacional de Áreas de Conservación para la atención de los visitantes de las áreas silvestres protegidas, o concesionar a un particular para su prestación. Mientras que, el permiso de uso está contemplado para autorizar a particulares el uso privativo del patrimonio natural del Estado, para actividades de investigación, capacitación, ecoturismo y acceso a agua potable, las cuales no son actividades o servicios complementarios al servicio público de conservación y uso sostenible de la biodiversidad, sino, más bien, se trata de actividades de iniciativa privada que podrían autorizarse en el patrimonio natural del Estado.[1] Además, conforme con el artículo 39 de la Ley de Biodiversidad, las concesiones de servicios no esenciales pueden otorgarse exclusivamente a asociaciones de desarrollo comunal, cooperativas, microempresas inscritas en el Ministerio de Economía, Industria y Comercio u organizaciones sociales nacionales sin fines de lucro que tengan objetivos de apoyo a la conservación de los recursos naturales, que incorporen la gestión ambiental dentro de los procesos y área concesionada y con su personería jurídica vigente, siempre que se encuentren integradas y controladas directamente por habitantes de las comunidades ubicadas en la zona de influencia de la respectiva área silvestre protegida; mientras que, para el otorgamiento de los permisos de uso no existen esas limitaciones.En principio, todas las áreas silvestres protegidas deben ser administradas y utilizadas conforme a las anteriores disposiciones. Y, aunque esas regulaciones y limitaciones de uso están fijadas en normas legales y reglamentarias, debe tenerse en cuenta que las áreas silvestres protegidas “a partir de su declaratoria se pretende dotar a estas zonas geográficas de una vocación conservacionista y proteccionista necesarias para cumplir su función.” (Sala Constitucional, votos nos. 21258-2010 de las 14 horas de 22 de diciembre de 2010, 16938-2011 de las 14 horas 37 minutos de 7 de diciembre de 2011 y 2752-2014 de las 9 horas 15 minutos de 28 de febrero de 2014). Y que, en virtud de ello, las áreas silvestres protegidas están enmarcadas “dentro de un contexto de planificación que tiene la finalidad de preservar el recurso natural.” (Sala Constitucional, voto no. 16938-2011 ya citado). En consecuencia, la modificación de las normas referidas a un área silvestre protegida en la que se establezcan condiciones de uso y regulaciones sobre su administración, distintas al régimen aplicable a la generalidad de esos espacios protegidos, podrían implicar una desmejora en el nivel de protección del área y, en consecuencia, la vulneración de principios constitucionales.En ese sentido, la Sala Constitucional ha señalado que: “La demanialidad ambiental supone un régimen especial de protección: La declaración de demanialidad por razones ambientales supone una esfera especial de protección, en la medida en que configura un régimen especial de dominio, regulado por normas intensas de derecho público y que procuran el resguardo del cumplimiento de una finalidad de tutela del derecho al ambiente sano y ecológicamente equilibrado. Atendiendo a dichas razones constitutivas y en aras de las bondades que subyacen en su dimensión teleológica, cualquier determinación de desafectación total o parcial, o bien, de recomposición de su naturaleza jurídica, exige e impone los debidos análisis técnicos que ponderen la variable ambiental en la toma de la decisión, como derivación de los principios de no regresión, progresividad del ambiente, precautorio, preventivo y pro-natura.La especial protección constitucional del ambiente impone un exhaustivo estudio de las razones que sustenten ese tipo de determinaciones, en el contexto de los diversos niveles que componen los ecosistemas, así como las relaciones del ambiente con el entorno antropológico y dentro de este, las incidencias sociales, económicas, entre otras. De esa manera, la ausencia de ese tipo de rigor técnico en la variación de naturaleza del dominio público ambiental deja de lado y quebranta, aún por riesgo, el contenido sustancial de ese derecho. Lo mismo ha de advertirse en lo referente a la permisibilidad de la realización de actividades humanas dentro de esos espacios territoriales, sin la debida ponderación del impacto que aquellas pueden llegar a producir en el medio, para lo cual, es menester la consideración del régimen primario de uso del bien, la tipología de ecosistemas convergentes en esa área, la existencia o no de regímenes especiales de uso impuestos por normas jurídicas.En efecto, la variación de uso de un bien al que tradicionalmente se ha conferido un régimen de protección ambiental, precisa de las valoraciones de orden técnico sobre las consecuencias que esas nuevas incursiones antrópicas llegarán a producir en el ecosistema, así como si son congruentes con el medio, bajo un contexto de sostenibilidad ambiental. (Voto no. 22606-2022 de a las 13 horas 10 minutos de 28 de setiembre de 2022). Valoraciones técnicas que se desconocen en relación con el cambio operado respecto de la Isla San Lucas. II. Sobre el Refugio de Vida Silvestre Isla San Lucas. En cuanto a la isla San Lucas, debe partirse de la Ley de Traspaso de la Isla San Lucas a la Municipalidad de Puntarenas (no. 5469 de 25 de abril de 1974), que dispuso ese traspaso con el fin de que la Municipalidad administrara la isla y desarrollara en ella, por sí misma o por licitación pública, un centro turístico.Para ello, autorizó a la Municipalidad a contratar las obras de infraestructura necesarias, a realizar todo tipo de actividad propia de una explotación turística bien organizada y encomendó al Instituto Costarricense de Turismo la tarea de estudiar técnicamente el territorio de la isla y elaborar el planeamiento del desarrollo turístico, de acatamiento para la Municipalidad. El legislador mantuvo ese régimen especial al promulgarse la Ley sobre la Zona Marítimo Terrestre (no. 6043 de 2 de marzo de 1977) pues, en el artículo 78, se dispuso que “la isla de San Lucas conservará su situación jurídica actual bajo la administración de la Municipalidad de Puntarenas.” Estando vigentes esas normas, el Poder Ejecutivo, mediante el Decreto no. 29277 de 11 de enero de 2001, declaró la isla San Lucas y el área marina circundante hasta una profundidad de seis metros, como un Refugio de Vida Silvestre, disponiendo que su administración correspondería al Ministerio de Ambiente y Energía y que su manejo se regiría de acuerdo con las disposiciones establecidas al respecto por la legislación vigente en la materia.Posteriormente, mediante Decreto Ejecutivo no. 30714-C de 26 de septiembre de 2002, se declaró e incorporó la isla al Patrimonio Histórico Arquitectónico de Costa Rica, disponiéndose que esa declaratoria prohíbe la demolición del inmueble y su remodelación parcial o total, sin la autorización previa del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura. Sobre la validez del Decreto 29777 que creó el área silvestre protegida en la isla, pese a la existencia de la ley no. 5469, la Sala Constitucional indicó: “Un análisis superficial de la cuestión podría conducir a pensar que el Decreto 29277-MINAE intenta derogar lo dispuesto en las leyes citadas. No obstante, debemos recordar que la competencia para establecer áreas de conservación es dada al Poder Ejecutivo por diversas normas de rango legal (cfr. párrafo anterior), en directo desarrollo de la norma contenida en el artículo 50 de la Constitución Política.Así, cuando el Poder Ejecutivo formula una declaratoria de este tipo, lo hace por expresa autorización legal y en acatamiento de sus deberes constitucionales para con el medio ambiente, por lo que no es el Decreto el que crea el régimen jurídico de las áreas protegidas, sino que únicamente es la vía que permite una célere y efectiva protección del ambiente, al dejar a los órganos técnicos competentes, la valoración de las razones de orden ambiental que llevan a la determinación de una zona de esta naturaleza. Así las cosas, el Decreto cuestionado no es inconstitucional por pretender reformar las normas legales citadas, ya que son normas del mismo y superior rango las que permiten al Poder Ejecutivo actuar como lo hizo en defensa de la integridad del medio ambiente. (…) … lo actuado por el Poder Ejecutivo en el presente caso está dentro del marco de sus competencias, en tanto permite cumplir con el deber que le impone el artículo 50 de la Constitución Política, así como la copiosa regulación producida por el Derecho Internacional en relación la obligación insoslayable del Estado de proteger el medio ambiente, adoptando todas las medidas idóneas para lograr una garantía integral y efectiva.Así, aunque las municipalidades tienen innegables deberes en este campo, es evidente que la protección del ambiente trasciende el interés meramente local, para constituirse un asunto de interés nacional, por lo que las acciones del Estado central como delegado de la Nación soberana para el cumplimiento de sus fines asociativos, en tanto propicien una efectiva defensa de sus bienes naturales, resulta no sólo válida, sino incluso indispensable. Un decreto como el impugnado, al determinar –basado en criterios técnicos no susceptibles de discusión en esta vía- que la Isla San Lucas y el Estero de Puntarenas son áreas de interés ambiental que requieren de un régimen jurídico especial, no podría nunca lesionar la autonomía municipal, reconocida en los artículos 169 y 170 de la Constitución Política. El mismo legislador quiso reservar al Poder Ejecutivo dichas competencias, por tratarse de intereses de la colectividad nacional.Así, la Ley número 7152 de cinco de junio de mil novecientos noventa creó el Ministerio de Recursos Naturales, Energía y Minas, al que constituyó rector del sector ambiental y encomendó por su especialidad técnica, la labor de "Dictar, mediante decreto ejecutivo, normas y regulaciones, con carácter obligatorio, relativas al uso racional y a la protección de los recursos naturales, la energía y las minas" (artículo 2 inciso ch). La potestad del Ministerio de Ambiente y Energía (sucesor de las competencias del Ministerio de Recursos Naturales, Energía y Minas) de administrar los refugios nacionales y los humedales, se deriva además de los artículos 82 y 84 de la Ley de la Conservación Silvestre, 32 de la Ley Orgánica del Ambiente, 13 de la Ley Forestal, y 58 de la Ley de Biodiversidad. En conclusión, esta Sala no encuentra en los actos impugnados violación alguna a la autonomía de la Municipalidad de Puntarenas, ya que los aspectos que regulan son de interés de toda la colectividad, y no solamente de los habitantes del cantón central de Puntarenas.” (Voto no. 8928-2004 de las 16 horas 37 minutos de 18 de agosto de 2004.Se añade la negrita). Es de interés señalar que, en esa oportunidad, se le dio prioridad al interés público y nacional de conservar los recursos naturales existentes en la isla, sobre el interés local de la Municipalidad de manejarla. Luego, se emitió el Decreto Ejecutivo no. 34282 de 25 de enero de 2008, disminuyó el 5.5% del área terrestre del Refugio y aumentó su área en 210 hectáreas (que contienen porciones de agua e islotes), declaró de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla y estableció una Comisión Permanente conformada por los Ministros Rectores de Cultura, Juventud y Deportes, Turismo y Ambiente y Energía, o sus representantes y por el Alcalde de Puntarenas o su representante, encargada de velar por el manejo racional de los terrenos excluidos del Refugio y de administración municipal. Asimismo, ese Decreto dispuso que para el desarrollo de actividades turísticas en el área de administración municipal y para la preservación del patrimonio cultural de la isla, el ICT elaboraría un Plan Maestro de Desarrollo Turístico Sostenible, que comprendería un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural de esa área específica.Ante tres acciones de inconstitucionalidad planteadas contra ese Decreto, la Sala reiteró la validez de la creación del Refugio de Vida Silvestre, y, por tanto, lo declaró inconstitucional, únicamente, en cuanto redujo el área terrestre del Refugio, pero, eso sí, manteniendo la adición de área marina dispuesta. En ese sentido, dispuso: “Las tres acciones de inconstitucionalidad acumuladas tienen como común denominador la aludida infracción al artículo 50 constitucional, por la inobservancia del artículo 38 de la Ley Orgánica del Ambiente. Para declarar la inconstitucionalidad basta comprobar que fue incumplido el mandato establecido en este último numeral, al modificar la cabida del área silvestre protegida. El numeral 38 indica que: «La superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida».De ahí que el Poder Ejecutivo no puede reducir éstas áreas sin observar el procedimiento legislativo y técnico, razón por la cual, la Sala declara parcialmente con lugar la demanda para anular el artículo 1° únicamente en cuanto excluye del área protegida del Refugio Nacional de Vida Silvestre Isla San Lucas, el «5.5% del área actual para la protección del patrimonio cultural», lo anterior por infracción a lo dispuesto por los artículos 11, 50 y 89 constitucionales, y no en cuanto a la adición del sector marino e islotes, toda vez que ello es permitido al Poder Ejecutivo acordarlo mediante Decreto Ejecutivo.” (Voto no. 13099-2010 de las 14 horas 56 minutos de 4 de agosto de 2010). En ese mismo voto, la Sala reconoció la validez de la declaratoria de patrimonio histórico arquitectónico, pues, con base en normativa internacional, se determina la posibilidad de proteger el patrimonio natural y cultural, de manera simultánea, y de adoptar medidas tendientes a la puesta en valor de ese patrimonio cultural.En consecuencia, admitió que en el manejo de la isla concurren varios actores públicos que deben actuar bajo los principios de unidad y coordinación, y, señaló, además, que el posible desarrollo turístico que planteó el Decreto debe ser de muy bajo impacto ambiental, respetando la protección del ambiente y de los bienes culturales existentes en la zona y que motivan los dos regímenes de protección que confluyen en ella. En ese sentido, indicó: “…ambos derechos, ambiental natural y ambiental urbano deben equilibrarse cuando el Patrimonio Cultural se encuentra presente, dado que se trata también de valores constitucionales que no pueden ser legítimamente excluidos, de los derechos de acceso y de disfrute de todos los particulares, nacionales y extranjeros, lo que se conoce como su puesta en valor. Pero la Sala sostiene que debe desmitificarse que la aspiración del desarrollo humano únicamente puede conseguirse en un ambiente urbano.Frente a esta situación, la Sala estaría ante una disyuntiva: aunque el Decreto Ejecutivo 34282-TUR-MINAE-C contenga disposiciones que rozan claramente con el artículo 50 de la Constitución Política, y que así se declara en esta sentencia, hay otras que sí encuentran su fundamento en la legislación nacional e internacional, las cuales no pueden eliminarse porque encuentran precisamente su sustento en normas de mayor rango jurídico, además de ser consecuentes con su condición de derecho fundamental (véase el Considerando XX de la sentencia 2003-03656). En tales supuestos, con fundamento en el derecho fundamental al ambiente sano y ecológicamente equilibrado, no procede sacrificar la tutela al Patrimonio Nacional y Cultural. (…) El Estado es una unidad de competencias, que debe subdividirse por grados de especialización para lograr sus cometidos y fines señalados en el ordenamiento jurídico.Si los órganos y entes públicos deben llenar fines constitucionales (artículos 50 y 89) con fundamento en el grado de especialización de funciones, su coordinación debe ser un aspecto prioritario para la solución de los problemas que surgen en el ejercicio de sus respectivas competencias, el Ministerio de Ambiente, Energía y Telecomunicaciones en cuanto regenta el patrimonio natural, el Ministerio de Juventud, Cultura y Deportes en lo relacionado a las políticas de conservación del patrimonio histórico-patrimonial, el Instituto Costarricense de Turismo en la habilitación y conservación de sitios históricos y de belleza natural para el turismo, y la Municipalidad de Puntarenas al velar por los intereses locales de su comunidad. (…) El principio de unidad del Estado tiene mayor importancia en las áreas grises del derecho público, en el tanto que la única solución conforme al Derecho de la Constitución es recurrir a los principios de la cooperación y coordinación entre los órganos y entes del Estado, cada uno en su grado de autonomía y de especialidad por la materia.En este sentido, la eficacia en las acciones estatales obliga a considerar que del principio de unidad debe derivarse la supremacía de ciertos órganos para la coordinación de las actividades estatales. En este sentido, la Sala reconoce que el Decreto Ejecutivo agrupó a los diferentes órganos rectores en su campo de especialización para que pudieran encargarse del desarrollo turístico de bajo impacto en la Isla, lo cierto es que la Sala solo declara parcialmente con lugar la demanda por el incumplimiento de lo dispuesto por el artículo 38 de la Ley Orgánica del Ambiente, porque no se cumplieron con todos los aspectos jurídicos formales y los estudios técnicos aplicables. Pero en lo demás, es evidente de los artículos 50 y 89 de la Constitución Política, de igual forma que se dispone la protección del ambiente natural, señalan como fines desarrollar (para dar acceso y disfrute al público) de los bienes del patrimonio histórico arquitectónico del país, son objetivos igualmente constitucionales y deben predominar sin que uno desmejore al otro.(…) Un tipo de turismo rural de bajo impacto ecológico respetuoso de la normativa ambiental, resulta compatible con el Derecho de la Constitución, contentiva de las obligaciones internacionales ampliamente desarrolladas en los precedentes de la Sala (a las que remite esta Sala), y con el artículo 89 de la Constitución Política al fijar los objetivos culturales, entre ellos: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico, y cuyo valor se potencia en el acceso que pueda tener de él la población. Por ello, no se demuestran incompatibilidades entre la protección al ambiente y la conservación de bienes culturales puestos a disposición de la humanidad, con un proyecto que debe desarrollarse integralmente con el ambiente, que debe ser comprensivo de todos sus componentes, no excluyente... De este modo, aun cuando con las competencias de la Ley Orgánica del Ambiente se autoriza establecer categorías de manejo reguladas como Áreas Silvestres Protegidas mediante Decretos Ejecutivos, ha operado otra de la misma naturaleza con la declaratoria patrimonial contemplada en la Ley de Patrimonio Histórico Arquitectónico de Costa Rica, mediante las declaratorias respectivas por Decreto Ejecutivo.La convergencia de la Municipalidad de Puntarenas se manifiesta cuando en el ámbito de aplicación de la Ley No. 5469, que materializa el traspaso de la Isla San Lucas a la Municipalidad de Puntarenas, que data desde 1974, es ratificada en la Ley sobre la Zona Marítimo Terrestre, Ley No. 6043 de 2 de marzo de 1977. Precisamente, el artículo 78 de esta Ley establece: “La isla de San Lucas conservará su situación jurídica actual bajo la administración de la Municipalidad de Puntarenas.” Y el numeral 82 de ese mismo texto normativo establece: “Esta ley es de orden público, deroga … así como todas las demás que se opongan excepto la ley No. 4071 de 22 de enero de 1968 y sus reformas y la Ley No. 5469 de 25 de abril de 1974…” Además, es legislación vigente no reformada o derogada expresamente por legislación posterior, por lo que su vigencia se mantiene siempre que no infrinja los principios ambientales y de patrimonio históricoarquitectónico, y no deben contravenir las políticas de los órganos rectores, situación que deberá ser dilucidado por todos los órganos y entes involucrados.Además de lo anterior, la Isla San Lucas tiene una finalidad de ser utilizada como centro turístico con beneficios financieros para diversas instituciones de bien social. El desarrollo de la infraestructura debe ser compatible con los principios de sustentabilidad ambiental, su protección y conservación, por el contrario serían cuestionables constitucionalmente si se realizaran obras que no tuvieran en cuenta los regímenes de protección vigentes en la Isla, como la construcción de obras de infraestructura de gran envergadura, dado que la vigencia del régimen como área protegida implicaría un cambio sustancial al uso de suelo, y no por las obras humanas que existieron mucho antes de la declaratoria de la Isla como Área Silvestre Protegida y de patrimonio históricoarquitectónico. De ahí que, no estima la Sala que los artículos 2, 3, 4, 6 y 7 del Decreto Ejecutivo 34282-TUR-MINAET-C presenten vicios de constitucionalidad, pero entendido con los siguientes matices.La declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible, que señala el numeral 2, deberá entenderse constitucional mientras que la conservación y restauración de las edificaciones del antiguo penal y aquellas que fueron construidas con ocasión de su existencia, queden circunscritas a las labores de conservación, protección y mejoramiento de su entorno. Lo mismo debe ocurrir con los sitios arqueológicos y el cementerio ubicado en Playa Cocos, sin perjuicio, claro está, de los estudios arqueológicos y científicos que deberán ser objeto. En cuanto a la infraestructura destinada para el uso del turista, ésta deberá estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos y a ésta, las instalaciones que se deberán construir serán las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica.Reconoce este Tribunal que se trata de un verdadero reto lograr la conservación y recuperación de las edificaciones de la Isla, así como su puesta en valor, incluidas –por ejemplo- las casas de madera ubicadas en el lugar conocido como “Las Jachas” y sus alrededores, la Enfermería, la Capilla, Edificio de Administración, y otra infraestructura necesaria para ofrecer servicios limitados del turismo de naturaleza y el eco-turismo, entre tanto, se responda a criterios de sustentabilidad, de lo contrario, conllevaría un roce de relevancia constitucional de los artículos 50 y 89. En cuanto a los incisos a) y b) del numeral 5 deberán entenderse constitucionales en la medida en que lo pretendido en el Plan Maestro se ajuste a lo señalado por esta Sala, especialmente en el tanto los estudios de zonificación y reglamentos de zonificación no se encuentran fundados en una reducción del área silvestre protegida en el 5.5% del área.” Es decir, si bien es cierto, la Sala reconoció la validez de la existencia del Refugio de Vida Silvestre, y, por esa razón, declaró inconstitucional el Decreto en cuanto disminuía parte de su área terrestre, determinó como necesaria la coordinación de competencias por parte de la Municipalidad de Puntarenas, el Instituto Costarricense de Turismo, el Ministerio de Cultura y el Sistema Nacional de Áreas de Conservación y reconoció la posibilidad de desarrollar actividades turísticas de muy bajo impacto ambiental, acordes a los regímenes de protección de la isla.Debe señalarse que, en ese voto, se sigue destacando el interés de protección de los recursos naturales de la isla, de la mano con la protección del patrimonio histórico arquitectónico, y, por tanto, el tipo de desarrollo turístico que la Sala Constitucional reconoció como válido en la isla está relacionado con actividades de ecoturismo, de muy bajo impacto ambiental, acordes a los fines de conservación de esos patrimonios. Por esa razón, se señaló que las instalaciones que se pueden construir son las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con una filosofía verde. En consecuencia, es posible afirmar que las actividades e instalaciones que la Sala Constitucional avaló, son las mismas actividades de ecoturismo que ya se contemplan en el régimen general de las áreas silvestres protegidas.III. Análisis de la acción de inconstitucionalidad. Teniendo en cuenta todo lo anterior y retomando la exposición en cuanto a nuestro criterio sobre la presente acción de inconstitucionalidad, consideramos que la Ley 9892 resulta violatoria de los principios de progresividad y no regresión en materia ambiental, de objetivación de la tutela ambiental y de razonabilidad, por dos razones fundamentales: 1. La Ley 9892 supone una desmejora en el nivel de tutela ambiental o de protección ambiental de la isla San Lucas, sin fundamento técnico. 2. La Ley impugnada modifica para un caso concreto específico, el régimen propio de los parques nacionales, sin contar con un criterio técnico. 1. La Ley 9892 supone una desmejora en el nivel de protección ambiental de la isla San Lucas, sin fundamento técnico. Pese a que la Ley 9892 crea el Parque Nacional Isla San Lucas y ello, en teoría, supondría un aumento en la categoría de manejo otorgada al área silvestre protegida, lo cierto es que del contenido de la norma se desprende que, en realidad, no se está mejorando el nivel de protección de la isla, sino que, al contrario, se está disminuyendo.La desmejora en el nivel de tutela que implica la Ley se da principalmente porque se modifica el régimen de área silvestre protegida y por el tipo de actividades que permite. Nótese que toda la ley está permeada y direccionada por la declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible de la isla dispuesta en el artículo 2. Además, en el artículo 1 se dispone que la isla será, además de área silvestre protegida, patrimonio histórico-arquitectónico y zona de aprovechamiento turístico sostenible, en las áreas específicas que se determinan en la ley. Es decir, se establece que hay un área de la isla que será una zona de aprovechamiento turístico, por lo que, esa zona, definida en los artículos 3 y 6, es un espacio de manejo diferenciado, como la misma ley lo dispone expresamente en el artículo 3. En otras palabras, se está excluyendo del régimen de área silvestre protegida un espacio específico de la isla, que la ley denomina como zona turística.Para ese espacio de manejo diferenciado, el artículo 7° señala que se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. Pero, además de eso, se establece un modelo de gobernanza y planificación para toda la isla, distinto al propio de las áreas silvestres protegidas. Lo anterior, en virtud de que, toda la isla deja de ser administrada por el SINAC, para ser gestionada por una Junta Directiva conformada por representantes del Ministerio de Ambiente, del Instituto Costarricense de Turismo, del Poder Ejecutivo, del Alcalde de la Municipalidad de Puntarenas y de la Cámara de Turismo de Puntarenas (artículos 8 y 10); y, esa Junta, según el artículo 9, será la encargada de: “a) Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque. b) Contribuir con la protección y conservación ambiental del parque nacional. c) Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos. d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla. e)Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país. f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura. g) Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes. h) Aprobar la estructura administrativa que se requiera para la gestión institucional del parque. i) Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra. j) Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro. k) Llevar a cabo cualquier otro tipo de actuación necesaria para asegurar la buena marcha del Parque Nacional Isla San Lucas y la consecución de sus fines.” Aunque el artículo 9 señala que para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del SINAC, lo cierto es que se excluye a ese organismo especializado del manejo y planificación del área silvestre protegida.Nótese que, incluso, para la planificación de la isla se opta por un plan maestro (artículo 7), no un plan de manejo, que deberá ser aprobado por la Junta Directiva. Es decir, la zonificación del área silvestre protegida y la determinación de las actividades que se podrán llevar a cabo se definirá en ese instrumento, que es distinto al plan de manejo, y, por ello, no deberá emitirse siguiendo los procedimientos y requisitos técnicos fijados para el desarrollo de los planes de manejo de las áreas silvestres protegidas. Recuérdese que, las actividades de capacitación, investigación y ecoturismo que se pueden realizar en las áreas silvestres protegidas están sujetas a lo que disponga el plan de manejo. También, los contratos de servicios no esenciales que se puedan conceder en las áreas silvestres protegidas están sujetas a ese instrumento de planificación, e incluso, al criterio técnico del Consejo Regional de} Conservación Ambiental.En este caso, la definición de las actividades y concesiones que se pueden otorgar en la Isla recae en un organismo distinto y están sujetas al plan maestro de desarrollo turístico de la Isla. Aparte de lo anterior, el marco normativo que ofrece la ley en cuanto al tipo de actividades que se podrían autorizar es sumamente amplio, por lo que, el plan maestro podría permitir el desarrollo de actividades e infraestructura más allá de lo permitido en el régimen general de las áreas silvestres protegidas, e, incluso, más allá de los lineamientos dados por la Sala Constitucional en el voto no. 13099-2010 en el que se indicó que únicamente resultaban posibles actividades turísticas de muy bajo impacto ambiental, acordes a los regímenes de protección de la isla y que las instalaciones que se podrían construir serían las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico.Por otra parte, la desmejora en el nivel de tutela ambiental de la isla, sin criterios técnicos, también se encuentra en la disminución del área marina del área silvestre protegida. Existe un amplio desarrollo jurisprudencial de la Sala Constitucional en cuanto a la exigencia de criterios técnicos que justifiquen la reducción de medida de un área silvestre protegida, y, en este caso, no se ha logrado determinar cuál fue la justificación técnica para reducir el área marina protegida alrededor de la isla San Lucas. La única razón que se ha expuesto en ese sentido es que no podía declararse como parque nacional toda el área que comprendía el refugio de vida silvestre porque el Decreto Ejecutivo que lo declaró también incluyó dentro de ese refugio, el estero de Puntarenas y que, en consecuencia, no resultaba viable incluir ese espacio dentro de la declaratoria de parque nacional. Sin embargo, debe resaltarse que el Decreto Ejecutivo no. 29277 de 11 de enero de 2001 que creó el Refugio de Vida Silvestre Isla San Lucas no declaró como parte de éste al estero de Puntarenas.El artículo 3 lo que hizo fue declarar ese estero como “Humedal del Estero de Puntarenas y Manglares Asociados”, es decir, como otra área silvestre protegida aparte, con una categoría de manejo distinta. Y es que, en todo caso, aunque se interprete que la parte marina no incluida en el parque sigue siendo refugio de vida silvestre, no existe fundamento técnico que justifique fraccionar la isla y las aguas marinas aledañas en dos áreas silvestres protegidas distintas y que acredite que ese fraccionamiento no genera consecuencias negativas para la protección de la isla. En ese sentido, debe tenerse en cuenta que el área marina que seguiría siendo refugio de vida silvestre se manejaría por el SINAC, con el plan de manejo correspondiente y por las reglas generales de las áreas silvestres protegidas, mientras que, el resto de área marina y el terreno insular que forman parte del parque nacional será administrado por la Junta Directiva, por el plan maestro de desarrollo turístico y por las disposiciones de la Ley 9892. 2.La Ley 9892 modifica para un caso concreto específico, el régimen propio de los parques nacionales, sin contar con un criterio técnico. El régimen que se le está dando al parque nacional Isla San Lucas es diferente e incompatible con el régimen general de los parques nacionales. Tal y como se expuso líneas atrás, en los parques nacionales y reservas biológicas, conforme con el artículo 58 de la Ley de Biodiversidad y la Ley de Creación del Servicio de Parques Nacionales está prohibido realizar cualquier tipo de actividad comercial, agrícola o industrial, no pueden otorgarse concesiones de tipo alguno para la explotación de productos, ni otorgarse permiso para establecer otras instalaciones, distintas a las del Servicio de Parques Nacionales. En el artículo 3° de la Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América se establece que las riquezas existentes en los parques nacionales no pueden explotarse con fines comerciales.Con base en esas disposiciones, reiteradamente se ha indicado que los parques nacionales y áreas silvestres protegidas son áreas de conservación absoluta. Y, de tal manera, se ha restringido el otorgamiento a particulares de permisos de uso para actividades de ecoturismo, conforme a lo señalado en el artículo 18 del Reglamento a la Ley Forestal. Lo que sí puede brindarse en los parques nacionales son los servicios no esenciales complementarios al fin público de conservación absoluta, que pueden ser prestados directamente por el SINAC o concesionados conforme con lo dispuesto en el artículo 39 de la Ley de Biodiversidad. Las concesiones de esos servicios no esenciales, en ningún caso, pueden significar la construcción de edificaciones privadas, y, tampoco, instalaciones distintas a las del Servicio de Parques Nacionales. La Ley 9892 tiene disposiciones abiertamente contrarias a ese régimen de protección de los parques nacionales: “ARTÍCULO 7-Alcances y restricciones.El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos. Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar. En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones.” ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones: (…) d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla. (…) f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.(…) j) Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro.” ARTÍCULO 14-Comisión Administradora del Fideicomiso y sus funciones. La Comisión Administradora del Fideicomiso nombrará de su seno una presidencia, una vicepresidencia y una secretaria. Todos los miembros de esta comisión trabajarán ad honorem. Entre las funciones de esta comisión se encuentran las siguientes: (…) g) Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes.” En consecuencia, la Procuraduría estima que esa modificación para un caso específico, que carece de justificación técnica, lesiona los principios de no regresión en materia ambiental, de objetivación de la tutela ambiental y de razonabilidad, y con ello, es contraria al artículo 50 de la Constitución Política y a la Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América”.
175. 176En los procedimientos se han cumplido las prescripciones de ley.

Redacta el Magistrado Castillo Víquez; y,

Considerando:

I. SOBRE LA ADMISIBILIDAD Y CUESTIONES PREVIAS

La acción de inconstitucionalidad es un proceso sujeto a ciertas formalidades, que deben observarse para que, de manera válida, la Sala pueda conocer el fondo de la impugnación. Justamente, el numeral 75 de la Ley de la Jurisdicción Constitucional regula los presupuestos de admisibilidad de la acción de inconstitucionalidad. En primer término, exige un asunto previo pendiente de resolver, sea en vía jurisdiccional o administrativa (en el procedimiento para agotarla), en que se haya invocado la inconstitucionalidad como medio razonable para amparar el derecho o interés que se considera lesionado. En los párrafos segundo y tercero, de manera excepcional, contempla supuestos en los que no se exige el asunto previo, tales como la inexistencia de lesión individual y directa por la naturaleza del asunto, la defensa de intereses difusos o colectivos, o cuando la acción es formulada directamente por el contralor general de la República, el procurador general de la República, el fiscal general de la República o el defensor de los Habitantes.

Ahora bien, en el sub lite, la parte recurrente sustenta su legitimación en la defensa de intereses difusos, por cuanto, en su opinión, la ley nro. 9892 vulnera el derecho a un ambiente sano y ecológicamente equilibrado, cobijado en el artículo 50 de la Carta Magna.

Sobre el particular, en reiterados pronunciamientos ha reconocido este Tribunal la existencia de un verdadero interés difuso en los reclamos relacionados con la vulneración al ambiente -verbigracia, ver sentencias nros. 2010013099 de las 14:56 horas del 4 de agosto de 2010, 2013012973 de las 16:20 horas del 25 de setiembre de 2013 y 2022001622 de las 13:00 horas del 19 de enero de 2022-. En el sub examine se reitera esa línea jurisprudencial y, en consecuencia, se avala la legitimación de la parte accionante con base en el párrafo segundo del ordinal 75 citado ut supra.

Aclarado lo anterior, por escrito incorporado al expediente digital el 24 de marzo de 2023, José Francisco Coto Meza, en su condición de apoderado general judicial del Instituto Costarricense de Turismo, pide que se solicite a la Cámara de Turismo de Puntarenas pronunciarse sobre los alegatos expuestos por los accionantes. Sobre el particular, este Tribunal no considera oportuno acoger tal solicitud, por cuanto en el sub iudice ya se tiene como informante al presidente ejecutivo del Instituto Costarricense de Turismo.

II. SOBRE LAS COADYUVANCIAS

El artículo 83 de la Ley de la Jurisdicción Constitucional establece que dentro de los 15 días posteriores a la primera publicación del edicto contemplado en el párrafo segundo del ordinal 81, las partes en los asuntos pendientes a la fecha de la interposición de la acción o quienes tengan interés legítimo podrán apersonarse a fin de coadyuvar con las alegaciones que pudieren justificar su procedencia o improcedencia, o para ampliar los motivos de inconstitucionalidad relativos al objeto de la acción.

En el sub lite, la Presidencia de la Sala, mediante resolución de las 17:00 horas de 28 de mayo de 2021, tuvo como coadyuvante activo a Jorge Serendero Hülssner, en su condición de apoderado general sin límite de suma de la fundación For The Oceans, por cuanto se apersonó dentro del plazo indicado ut supra; empero, rechazó el resto de las coadyuvancias formuladas dentro del proceso, debido a que los gestionantes omitieron cumplir lo prevenido por este Tribunal.

Finalmente, vistos los escritos incorporados al expediente digital el 14 de noviembre de 2022 y el 27 de enero de 2023, y en atención a la solicitud planteada por Susana Rojas Berrocal, cédula de identidad 110850879, se deja sin efecto la coadyuvancia formulada en su nombre mediante recibido en la Sala por correo electrónico del 27 de abril de 2021, agregado al expediente digital el 4 de mayo de 2021.

III. OBJETO DE LA ACCIÓN

Los accionantes cuestionan la totalidad de la ley nro. 9892, denominada “Ley de Creación del Parque Nacional Isla San Lucas” y, en particular, los ordinales 1, 2, 3 último párrafo, 5, 6, 7, 9 inciso d), 10, 14 inciso g), 15, 16, 17 y 18, por estimar en particular: a) que se produjo un cambio de categoría de manejo del área silvestre protegida de la Isla San Lucas y se incluyó una zona turística sin estudios previos; b) se redujo el área del área silvestre protegida sin justificación alguna; c) se establecen fines comerciales disfrazados de objetivos sostenibles, d) el Sistema Nacional de Áreas de Conservación no forma parte de la Junta Directiva del Parque Nacional Isla San Lucas, e) se permite la presencia de oficiales de seguridad privada en un parque nacional; f) se autoriza el otorgamiento de concesiones y la construcción de muelles y atracaderos dentro del parque nacional; y g) el financiamiento del área silvestre protegida creada es incierto.

En su criterio, esas disposiciones violentan los artículos 7, 50 y 89 de la Constitución Política, el derecho a un ambiente sano y los principios de razonabilidad, de irreductibilidad de las áreas silvestres protegidas, proporcionalidad, no regresión, objetivación, el principio precautorio y el principio de progresividad; así como la Opinión Consultiva nro. OC-23-17 de la Corte Interamericana de Derechos Humanos, el artículo 1.1.A de la Convención Sobre Conservación de Humedales de Importancia Internacional y Sitios para Aves Migratorias, el numeral 11 del Protocolo Adicional sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales “Protocolo de San Salvador”, ordinal 8, incisos d) y e) del Convenio sobre la Diversidad Biológica, artículo 26 de la Convención Americana sobre Derechos Humanos y a los artículos I y III de la Convención para la Protección de la Flora, de la Fauna y de las Bellezas Escénicas Naturales de los Países de América.

IV. SOBRE LA NORMATIVA IMPUGNADA

La ley nro. 9892 del 24 de agosto de 2020, denominada “Ley de Creación del Parque Nacional Isla San Lucas”, cuya constitucionalidad se cuestiona, dispone lo siguiente:

“CAPÍTULO I ASPECTOS GENERALES ARTÍCULO 1-Creación. Se crea el Parque Nacional Isla San Lucas, que además de su condición de área silvestre protegida, será patrimonio histórico - arquitectónico y zona de aprovechamiento turístico sostenible, en las áreas específicas que se determinan en la presente ley.

ARTÍCULO 2- Interés nacional. Se declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos de la presente ley, así como la conservación y restauración de las edificaciones del antiguo presidio de la Isla San Lucas. Las dependencias de la Administración pública y del sector privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la isla.

ARTÍCULO 3- Delimitaciones. El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera.

La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo, Edición 3-IGNCR en la latitud norte 9º 55' 55" - 9 57' 20" y longitud oeste 84º 53' 23", con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha).

El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m). Inserto, dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística.

ARTÍCULO 4- Fines. Son fines del Parque Nacional Isla San Lucas los siguientes:

• a)La preservación del patrimonio natural, histórico, cultural, arqueológico y arquitectónico.
• b)Coadyuvar al desarrollo socioeconómico del Golfo de Nicoya.
• c)El fomento del turismo sostenible e inclusivo, para la atención de visitantes nacionales y extranjeros.
• d)El disfrute, la recreación, la generación de facilidades y comodidades para la visitación turística inclusiva.

ARTÍCULO 5- Significación cultural e histórica. Se declaran patrimonio histórico - arquitectónico el conjunto de las edificaciones del antiguo presidio San Lucas; el Estado deberá restaurar y preservar este patrimonio para el disfrute y conocimiento de las actuales y futuras generaciones.

El Ministerio de Cultura deberá realizar un inventario del patrimonio citado y de su estado de conservación, actualizándolo periódicamente, todo lo cual comunicará al Ministerio de Ambiente y Energía (Minae) y a la entidad encargada de la administración de la isla.

ARTÍCULO 6- Zona turística. Las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se indican, estarán afectadas a la condición de Zona turística. Dichas áreas se especifican en las siguientes coordenadas:

• a)Área denominada Zona histórica: sitio donde se localizan las edificaciones del antiguo presidio San Lucas, coordenadas en la proyección CRTM05:

Zona histórica Punto Este Norte 1A 400981.03 1100093.66 2A 401261.56 1100135.03 3A 401306.62 1100202.99 4A 401457.60 1100173.85 5A 401475.57 1100140.83 6A 401541.55 1100120.77 7A 401568.40 1100120.73 8A 401536.47 1100052.42 9A 401477.02 1099857.81 10A 401462.89 1099787.67 11A 401466.18 1099719.98 12A 401477.60 1099672.13 13A 401386.15 1099679.91 14A 401332.15 1099682.96 15A 401230.16 1099698.05 16A 401179.17 1099704.10 17A 401098.21 1099752.17 18A 401030.19 1099727.23 19A 401000.17 1099710.26 20A 400959.14 1099681.30 21A 400936.12 1099650.32 22A 400901.15 1099684.35 23A 400876.20 1099744.37 24A 400833.25 1099793.41 25ª 400810.54 1099839.72 Desde el punto 25A se continúa con un rumbo norte por la línea de costa hasta alcanzar el punto 1A Área del polígono denominado "Área de edificaciones": 265664.59 1 m2, equivalentes a 26ha5664, equivalente a 0.27km2 b) Área de recreo playa El Coco: comprendida por las siguientes coordenadas en la proyección CRTM05:

Área de recreo playa El Coco Punto Este Norte 1B 401643.06 1099629.69 2B 401641.02 1099562.66 3B 401565.31 1099564.97 4B 401529.72 1099575.47 5B 401509.31 1099592.93 6B 401495.15 1099616.41 7B 401477.60 1099672.13 8B 401466.18 1099719.98 9B 401462.89 1099787.67 10B 401477.02 1099857.81 11B 401536.47 1100052.42 12B 401568.40 1100120.73 13B 401577.04 1100161.48 14B 401607.21 1100242.40 15B 401643.53 1100323.34 16B 401663.94 1100357.67 17B 401724.22 1100325.70 Desde el punto 17B se continúa con un rumbo su por la cota (sic) de profundad (sic) de 4.00 metros en el mar hasta alcanzar el punto 1B Área del polígono denominado "Área de recreo playa El Coco": 76401.99, equivalentes a 7ha6401, equivalente a 0.08km2 c) Sector denominado Área de senderos: comprendida por las siguientes coordenadas en la proyección CRTM05 Área de senderos Punto Este Norte 1C 400810.54 1099839.72 2C 400833.25 1099793.41 3C 400876.20 1099744.37 4C 400901.15 1099684.35 5C 400936.12 1099650.32 6C 400867.31 1099551.65 7C 400814.73 1099469.28 se 400776.42 1099415.41 9C 400743.31 1099416.06 10C 400729.68 1099455.63 11C 400677.1O 1099476.38 12C 400606.39 1099489.92 13C 400509.34 1099530.02 14C 400403.28 1099555.80 15C 400327.93 1099561.12 16C 400295.41 1099560.90 17C 400263.08 1099573.89 18C 400229.28 1099573.89 19C 400134.22 1099551.60 20C 400076.18 1099569.08 21C 400026.55 1099562.81 22C 400000.45 1099542.53 23C 399992.36 1099521.17 1099503.01 24C 399986.52 25C 399976.78 1099485.49 26C 399936.53 1099470.58 27C 399894.34 1099467.98 28C 399801.13 1099439.46 29C 399757.79 1099410.59 30C 399685.05 1099347.02 31C 399660.39 1099316.53 32C 399636.37 1099294.48 33C 399622.09 1099284.75 34C 399597.42 1099277.61 35C 399577.95 1099280.21 36C 399559.12 1099298.37 37C 399542.89 1099311.34 38C 399512.38 1099317.83 39C 399483.17 1099319.13 40C 399471.49 1099326.91 41C 399447.47 1099338.59 42C 399424.10 1099343.77 43C 44C 399403.33 399374.83 1099343.13 1099341.56 45C 399374.86 1099318.47 46C 399370.17 1099251.36 47C 399341.18 1099175.13 48C 399286.84 1099093.34 49C 399216.70 1099084.41 Desde el punto 49C se continúa con un rumbo norte por la línea de costa hasta alcanzar el punto 50C.

50C 399304.38 1099473.03 51C 399343.31 1099505.35 Area (sic) de senderos Punto Este Norte 52C 399444.50 1099480.56 53C 399535.37 1099485.66 54C 399628.29 1099515.25 55C 399716.10 1099551.97 56C 57C 399755.92 1099607.07 399794.18 1099656.91 58C 399822.33 1099699.55 Desde el punto 58C se continúa con un rumbo norte por la línea de costa hasta alcanzar el punto 1C.

Área del polígono denominado "Área de senderos": 314277.731 m2, equivalentes a 31 ha4277, equivalente a 0.31 km2 d) Área denominada Sector de agua: comprendida por las siguientes coordenadas en la proyección CRTM05 Sector de agua Punto Este Norte 1D 2D 399731.59 399833.40 1099755.72 1099974.32 3D 400081.26 1099819.1O 4D 400462.40 1099962.75 5D 400396.44 1100013.81 6D 399981.48 1100066.19 7D 399808.55 1100136.35 8D 399958.59 1100186.21 9D 400081.63 1100223.10 10D 400059.82 1100439.12 11D 400039.92 1100550.14 12D 400074.93 1100556.11 13D 400140.22 1100535.42 Desde este punto 13D se continúa con un rumbo este-sur-oeste, por la línea de costa hasta alcanzar el punto 1D Área del polígono denominado "Sector de agua" 746209.m2, equivalentes a 74ha6209, equivalente a 0.75 km2

CAPÍTULO II

ADMINISTRACIÓN

ARTÍCULO 7-Alcances y restricciones. El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos.

Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar.

En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones.

Cualquier conflicto de competencias será dirimido por el ministro o la ministra de Ambiente y Energía.

ARTÍCULO 8- Gobernanza de la isla. Para el gobierno y la administración del Parque Nacional Isla San Lucas se crea la Junta Directiva del Parque Nacional Isla San Lucas, que será un órgano de desconcentración máxima adscrito al Ministerio de Ambiente y Energía (Minae), y con personalidad jurídica instrumental para el ejercicio de sus competencias.

ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones:

• a)Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque.
• b)Contribuir con la protección y conservación ambiental del parque nacional.
• c)Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos.
• d)Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla.
• e)Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país.
• f)Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.

En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura.

• g)Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes.
• h)Aprobar la estructura administrativa que se requiera para la gestión institucional del parque.
• i)Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra.
• j)Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro.
• k)Llevar a cabo cualquier otro tipo de actuación necesaria para asegurar la buena marcha del Parque Nacional Isla San Lucas y la consecución de sus fines.

En materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible.

ARTÍCULO 10-Integración. La Junta Directiva del Parque Nacional Isla San Lucas estará integrada por los siguientes miembros:

• a)La ministra o el ministro de Ambiente y Energía, quien lo presidirá, pudiendo actuar como suplente un viceministro o viceministra de la cartera.
• b)La ministra o el ministro de Cultura, pudiendo actuar como suplente un viceministro o viceministra de la cartera.
• c)La Presidencia Ejecutiva del Instituto Costarricense de Turismo (ICT), pudiendo actuar como suplente la persona que ostenta la gerencia o un integrante de la Junta Directiva de dicho instituto.
• d)Una persona representante del Poder Ejecutivo designada por el Consejo de Gobierno, órgano que nombrará, además, a una persona suplente.
• e)La alcaldesa o el alcalde de la Municipalidad del cantón Central de Puntarenas, pudiendo actuar como suplente una vicealcaldía.
• f)La presidenta o el presidente de la Cámara de Turismo de Puntarenas, pudiendo actuar como suplente alguno de los integrantes de la Junta Directiva de dicha cámara.

El presidente o la presidenta de la Junta ostentará la representación judicial y extrajudicial del órgano. Asimismo, contará con voto de calidad en los términos del artículo 49 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. Los integrantes de la Junta Directiva no devengarán ninguna dieta.

ARTÍCULO 11- Duración y organización. Las seis personas integrantes de la Junta Directiva del Parque Nacional Isla San Lucas permanecerán en sus puestos mientras ostenten el cargo que los legitima como integrantes y, en el caso de la representación del Poder Ejecutivo, mientras no sea removida por el Consejo de Gobierno.

La Junta Directiva del parque podrá sesionar válidamente con la integración de las personas suplentes, incluso en el supuesto de que el cargo titular principal se encuentre vacante.

En lo no regulado en la presente ley, la Junta Directiva se regirá en su estructura, organización y funcionamiento por la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978.

ARTÍCULO 12- Sesiones. La Junta Directiva sesionará de forma ordinaria al menos una vez al mes y, de forma extraordinaria, cuando se requiera; en cuyo caso, la Presidencia hará la convocatoria.

Todas las sesiones de la Junta Directiva deberán ser documentadas formalmente.

La Junta Directiva podrá invitar a sus sesiones al personal técnico y a otras personas que requiera para la toma de acuerdos.

ARTÍCULO 13- Fideicomisos. La Junta Directiva del Parque Nacional queda autorizada para utilizar la figura del fideicomiso como instrumento de administración, gestión, desarrollo y mantenimiento del Parque Nacional Isla San Lucas, para el cumplimiento de las finalidades indicadas en la presente ley. Este instrumento será establecido con un banco comercial del Estado y deberá ejecutar directamente las labores y atribuciones que la Junta le asigne.

Dentro de la estructura del fideicomiso se contará con una Comisión Administradora y una Fiscalía, cuyos miembros serán nombrados por la Junta. Dicha comisión se tendrá como un Comité Especial, de conformidad con el artículo 116 de la Ley 1644, Ley Orgánica del Sistema Bancario Nacional, de 26 de setiembre de 1953. Será un cuerpo colegiado interdisciplinario integrado por cinco personas de reconocida honorabilidad, con conocimiento en alguna de las siguientes materias: administración, desarrollo de infraestructura, turismo, ambiente, patrimonio cultural, mercadeo, u otras materias atinentes a los fines de la presente ley.

Se autoriza además a la Junta Directiva para que administre los fondos que ingresen al parque por cualquier concepto, por medio de dicho fideicomiso.

La selección del banco comercial del Estado que actuará como fiduciario se realizará mediante una rigurosa determinación del perfil, bajo parámetros de seguridad, liquidez, diversificación, rentabilidad, experiencia fiduciaria y control de riesgos.

La Contraloría General de la República tendrá acceso irrestricto a toda la información y documentación del fideicomiso, cuando lo considere pertinente.

ARTÍCULO 14-Comisión Administradora del Fideicomiso y sus funciones. La Comisión Administradora del Fideicomiso nombrará de su seno una presidencia, una vicepresidencia y una secretaria. Todos los miembros de esta comisión trabajarán ad honorem.

Entre las funciones de esta comisión se encuentran las siguientes:

• a)Cumplir todas aquellas labores o tareas encomendadas por el fideicomitente, establecidas en el contrato de fideicomiso.
• b)Coordinar con la Junta Directiva del Parque Nacional Isla San Lucas y seguir sus lineamientos generales, para la correcta marcha y cumplimiento del fideicomiso.
• c)Aprobar los manuales correspondientes a la administración, gestión, vigilancia y otros relativos al fideicomiso.
• d)Conocer y aprobar, de forma anual, los presupuestos ordinario y extraordinarios del fideicomiso.
• e)Instruir al fiduciario sobre las acciones que se requieran y se encuentren dentro del giro del fideicomiso.
• f)Reunirse al menos una vez al mes de forma ordinaria y, extraordinaria, cada vez que sea convocada por la Presidencia de la Junta o el representante del fiduciario.
• g)Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes.
• h)Las funciones que le atribuya el contrato de fideicomiso relativas a control interno, vigilancia, compras, personal y otras necesarias para la administración del parque nacional.
• i)Cualquier otra función que se desprenda del contrato de fideicomiso, sus manuales u otras relacionadas directamente.

ARTÍCULO 15- Vigilancia y seguridad. Para la vigilancia y seguridad del Parque Nacional Isla San Lucas se contará con la dotación necesaria de guardaparques del Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente y Energía (Minae), sin perjuicio de la posibilidad de que la Junta Directiva, directamente o por medio del fideicomiso de administración correspondiente, pueda contratar la seguridad que considere necesaria; dicho personal no tendrá autoridad de policía ni podrá ejercer funciones indelegables propias de la administración. Asimismo, podrá recurrir al auxilio del Ministerio de Seguridad en situaciones que así lo ameriten.

CAPÍTULO III

DESARROLLO Y FINANCIAMIENTO

ARTÍCULO 16- Desarrollo de infraestructura. El Parque Nacional Isla San Lucas podrá desarrollar toda la infraestructura necesaria para facilitar el turismo sostenible, incluyendo la dotación de agua, electricidad, telecomunicaciones, higiene y saneamiento, muelles, atracaderos, servicios de alimentación y vías de acceso, información y comunicación en diversos formatos, así como la que estime pertinente para el provecho de los visitantes y asegurar el disfrute y apreciación de la riqueza histórica, arquitectónica y natural del parque.

En la construcción de muelles, atracaderos y demás facilidades marítimas, el Instituto Costarricense de Puertos del Pacífico (lncop), el Ministerio de Obras Públicas y Transportes (MOPT) y el Instituto Costarricense de Turismo (ICT) suplirán el soporte técnico correspondiente a la Junta Directiva; asimismo, se faculta a estas instituciones para que construyan y den mantenimiento a las obras indicadas en esta norma.

ARTÍCULO 17- Financiamiento. El Parque Nacional Isla San Lucas dispondrá de recursos financieros que le permitan ejercer sus mandatos con agilidad y eficiencia. Estos incluirán los recursos que le correspondan por ley del Sistema Nacional de Áreas de Conservación (Sinac), transferencias de los presupuestos de la República o donaciones de cualquier persona física o jurídica, así como los fondos propios que genere el ingreso al parque, la utilización de sus servicios, los cánones por concesiones y permisos y, en general, por el pago de las actividades realizadas dentro del parque.

Los recursos regulados en la presente ley así como todos aquellos que produzca el parque, necesaria y exclusivamente serán invertidos en el mismo parque nacional.

La fiscalización estará a cargo de la Contraloría General de la República.

ARTÍCULO 18- Autorización para donar y subvencionar. Se autoriza a todo el sector público estatal, no estatal y financiero para que haga donaciones, inversiones e incluya subvenciones presupuestarias a favor del Parque Nacional Isla San Lucas.

El Instituto Costarricense de Turismo (ICT) podrá transferir recursos económicos a la Junta Directiva del Parque Nacional Isla San Lucas para la realización de sus inversiones en desarrollo y actividades ordinarias; asimismo, podrá diseñar y realizar la promoción y el mercadeo para la visitación del parque.

Podrá recibir, la Junta Directiva, donaciones de parte de organismos internacionales y gobiernos extranjeros interesados en coadyuvar en los fines del parque.

ARTÍCULO 19- Autorización para créditos y préstamos. Para cumplir con sus objetivos, la Junta podrá concertar créditos y o préstamos, con entidades públicas o privadas, nacionales o extranjeras, siempre sujeta a los controles y las disposiciones de la Ley 8131, Ley de Administración Financiera de la República y Presupuestos Públicos, de 18 de setiembre de 2001.

ARTÍCULO 20- Derogatoria. Se derogan los artículos 2 al 8 de la Ley 5469, Ley de Traspaso de la Isla San Lucas a Municipalidad de Puntarenas, de 25 de abril de 1974.

TRANSITORIO I- La Junta Directiva del Parque Nacional Isla San Lucas deberá estar integrada en un plazo no mayor a dos meses, contado a partir de la entrada en vigencia de esta ley.

TRANSITORIO II- Mientras no se haya constituido el fideicomiso al que se refiere la presente ley o durante los períodos en que este llegue a quedar sin efecto, la Junta Directiva llevará a cabo todas las labores correspondientes mediante las facultades que esta y otras leyes le concedan.

El plazo para iniciar las gestiones tendientes a contratar el fideicomiso no podrá exceder de noventa días naturales a partir de la vigencia de esta ley.

TRANSITORIO III- En un plazo máximo de seis meses, a partir de la entrada en vigencia de esta ley, las instituciones y organizaciones que conforman la Junta Directiva del Parque Nacional Isla San Lucas, así como el Ministerio de Economía, Industria y Comercio (MEIC), deberán desarrollar una estrategia para la promoción de la participación de las organizaciones locales en las actividades turísticas que se desarrollen en el parque.

Rige a partir de su publicación.

Dado en la Presidencia de la República, San José, a los veinticuatro días del mes de agosto del año dos mil veinte.

EJECÚTESE Y PUBLIQUESE”.

V. EL DESARROLLO SUSTENTABLE Y EL TURISMO

Este Tribunal, en la sentencia nro. 2010-13099, al referirse previamente a la situación normativa de esta isla respecto del decreto nro. 34282-TUR-MINAE-C, se pronunció sobre las implicaciones que tiene un desarrollo sustentable junto con el turismo. Señaló en aquella oportunidad, que la piedra angular del desarrollo está en la sustentabilidad ambiental, que tiene como objetivo proteger y conservar el medio ambiente y sus recursos naturales, en equilibrio con la diversificación económica y el mejoramiento de la calidad de vida humana. Enfatizó que la idea medular de los principios de derecho ambiental radica en la utilización racional de los recursos naturales, con la protección del medio ambiente para asegurar la sustentabilidad de las generaciones presentes y futuras. De esta manera, toda actividad económica o productiva que intervenga o utilice el medio ambiente, debe responder a la filosofía del desarrollo sostenible, según el impacto que tenga en él.

En ese sentido, al fundarse el Poder Ejecutivo en este tipo de objetivos para el desarrollo económico y social, estimó esta Sala que el turismo rural como tal, debe responder a esos valores que protegen el desarrollo sostenible, porque no podría ser la excepción, y es constitucionalmente relevante controlar las repercusiones que pueda generar en el ambiente. Ejemplo de ello, es la Certificación para la Sostenibilidad Turística que emite el Instituto Costarricense de Turismo como un componente de suma importancia, que denota un avance por proteger el derecho al ambiente sano y ecológicamente equilibrado y, a la vez, impulsar la diversidad económica; esta medida genera incentivos a favor de las empresas dedicadas a la explotación turística de los recursos naturales y culturales. Por otra parte, se indicó que la Ley nro. 8724, que es Ley de Fomento del Turismo Rural Comunitario, busca traer beneficios a familias y comunidades, al utilizar sus localidades como destinos turísticos, y entre sus normas está el inciso a) del artículo 2 que señala: “Dar un uso óptimo a los recursos ambientales que son un elemento fundamental del desarrollo turístico, manteniendo los procesos ecológicos esenciales y ayudando a conservar los recursos naturales y la diversidad biológica.” En este sentido, mencionó que el Código Ético Mundial para el Turismo, adoptado por la resolución A/RES/406(XIII) de la decimotercera Asamblea General de la OMT en Santiago de Chile, el 27 de diciembre al 1 de octubre de 1999, y adoptado por la Asamblea General de las Naciones Unidas en resolución A/RES/56/212 del 21 de diciembre de 2001, establece:

“Artículo 3.

El turismo, factor de desarrollo sostenible 1. Todos los agentes del desarrollo turístico tienen el deber de salvaguardar el medio ambiente y los recursos naturales, en la perspectiva de un crecimiento económico saneado, constante y sostenible, que sea capaz de satisfacer equitativamente las necesidades y aspiraciones de las generaciones presentes y futuras.

2. Las autoridades públicas nacionales, regionales y locales favorecerán e incentivarán todas las modalidades de desarrollo turístico que permitan ahorrar recursos naturales escasos y valiosos, en particular el agua y la energía, y evitar en lo posible la producción de desechos.

…

4. Se concebirá la infraestructura y se programarán las actividades turísticas de forma que se proteja el patrimonio natural que constituyen los ecosistemas y la diversidad biológica, y que se preserven las especies en peligro de la fauna y de la flora silvestre. Los agentes del desarrollo turístico, y en particular los profesionales del sector, deben admitir que se impongan limitaciones a sus actividades cuando éstas se ejerzan en espacios particularmente vulnerables: regiones desérticas, polares o de alta montaña, litorales, selvas tropicales o zonas húmedas, que sean idóneos para la creación de parques naturales o reservas protegidas.

5. El turismo de naturaleza y el ecoturismo se reconocen como formas de turismo particularmente enriquecedoras y valorizadoras, siempre que respeten el patrimonio natural y la población local y se ajusten a la capacidad de ocupación de los lugares turísticos." Por ello, esta Sala indicó que, para el acceso equitativo del desarrollo, se debe abandonar la idea tradicional de que este solo se produce en las áreas urbanas, cuando en el medio rural pueden explotarse otros factores que hacen único el lugar, procurando por supuesto no amenazar esas condiciones. Se advirtió que, no hay duda de que la explotación de los recursos naturales implica diversidad económica, en esa medida el medio ambiente requiere de protección para soportar las cargas de la intervención del ser humano, por lo que es necesario asegurar un desarrollo razonable en equilibrio con el medio ambiente, de manera que el control que podría ejercerse se incrementaría, según el impacto que pueda tener sobre él.

Por consiguiente, el desarrollo turístico no debe implicar la destrucción de los bienes del dominio público o del entorno, porque incluso depende de su preservación para alcanzar el mejoramiento económico de las comunidades rurales dentro de los parámetros de la sostenibilidad. Dentro de los fines constitucionales del Estado está también el desarrollar políticas que reduzcan las brechas sociales y económicas, ajustando su actuación a la protección de los ambientes, sean naturales, rurales o mixtos, a partir de lo preceptuado por el artículo 50 constitucional. Tener acceso al desarrollo, en materia de oportunidades laborales y calidad de vida, equivale a un progreso económico que forma parte del reconocimiento y avance de los derechos humanos, de ahí que el desarrollo rural a través del turismo, no debe significar para los individuos abandonar sus costumbres y formas de vida tradicionales para migrar hacia las ciudades, sino un ajuste de ellas con las necesidades y avances actuales.

En este sentido, se indicó que, en el criterio de la Sala, el verdadero reto del ser humano es que se genere el progreso y –por qué no- felicidad (material y espiritual) sin que exista amenaza a los recursos disponibles en el medio ambiente; lo contrario simplemente se traduciría en desigualdades sociales que impiden avanzar hacia un nuevo estadio de desarrollo humano. La Sala reconoció que el balance es muy delicado entre uno y otro, pero para que esto se dé, sin desmejorar el medio ambiente, se debe acudir a la ciencia y a la técnica, para determinar cuáles son las cargas que pueden soportar determinados ambientes naturales y sus recursos, sin vulnerar el derecho de las generaciones presentes y futuras. Por todo ello, el conflicto entre la protección al medio ambiente y otros derechos que se derivan de él, ampliamente reconocidos en instrumentos internacionales de derechos humanos, merecen estas consideraciones de parte de este Tribunal Constitucional.

Así, concluyó esta Sala, que el desarrollo rural que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible. De ahí que si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones.

En relación con la protección del entorno y el patrimonio natural y cultural, en esa misma sentencia se indicó lo siguiente:

“X.- Sobre la protección al entorno y paisajes del patrimonio natural y cultural.- Este Tribunal Constitucional ha derivado de los artículos 7, 48, 50 y 89 constitucionales, y los Tratados Internacionales enunciados, los derechos y principios ambientales, pero a la vez, reconoce la necesidad del Estado de contribuir con políticas para impulsar la diversidad económica, a la vez que de conservación y protección de los bienes culturales y naturales, porque sin uno ni el otro, no podría entenderse que existe progreso humano equitativo para todos los sectores sociales. La protección del ambiente, la diversificación económica y la calidad de vida, son objetivos legítimos del Estado, al tener que implementar políticas de desarrollo en lo urbano y rural. Pero el tipo de progreso en un medio ambiente rural, debe apartarse de un modelo de desarrollo centralista, que supone que ésta puede darse únicamente en lo urbano, cuando debe explotar particularidades y otras necesidades específicas.

Ahora bien, el desarrollo rural, con base en el turismo, debe fundarse sobre otros ejes particulares: uno de ellos es el que la doctrina señala como la conservación de los valores propios de los espacios rurales. Este principio radica en que los espacios rurales exigen ser conservados sosteniblemente. En tal sentido, el bosque, el mar, la montaña, los volcanes, los manglares, humedales, etc. propician diferentes tipos de escenarios de desarrollo como intereses puedan existir. En sí, cada uno se constituye en un valor de apreciación escénica sujeta a la protección constitucional. Pero la labor de focalizar y estimular este tipo de políticas de desarrollo rural, son materias que corresponden al Legislador y al Poder Ejecutivo en sus funciones constitucionales. Esta Sala debe resaltar que la conservación de las características particulares de los ambientes rurales o del entorno natural o paisajista, es un valor contenido en el artículo 89 constitucional que requiere protección y debe dirigirse a la protección del entorno que potencia su valía, no solo como espacio rural, sino también como un destino turístico para que se hagan sentir los efectos positivos en las comunidades vecinas. En este sentido, el artículo 35 de la Ley Orgánica del Ambiente establece que:

“La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos:

a…

…

• f)Proteger los entornos naturales y paisajistas de los sitios y centro históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico de importancia para la cultura y la identidad nacional.” La Constitución Política señala como objetivos de relevancia jurídica no solo la protección, sino conservación y desarrollo del patrimonio histórico y artístico de la Nación. En el diccionario de la Real Academia Española proteger tiene los siguientes significados: 1.- Amparar, favorecer, defender.; y 2.- Resguardar a una persona, animal o cosa de un perjuicio o peligro, poniéndole algo encima, rodeándole, etc. Por su parte, conservar significa: 1. Mantener algo o cuidar de su permanencia; 2. Mantener vivo y sin daño a alguien; 3. Continuar la práctica de costumbres, virtudes y cosas semejantes; 4. Guardar con cuidado algo, entre otras acepciones.

Y desarrollar en el significado aplicable es acrecentar, dar incremento a algo de orden físico, intelectual o moral. En sintonía con lo anterior, la Ley autoriza como objetivos legítimos la creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas con sitios o centros históricos, arquitectónicos y arqueológicos, lo cual implica que en el manejo de los recursos culturales, es permitida la intervención del hombre para el mantenimiento, la guarda, la preservación y el cuido de los bienes que se ubican en su entorno, a la vez que en el desarrollo se favorece el rescate y realce de los sitios de interés que puedan existir en el lugar y sus alrededores. Los bienes de interés cultural requieren de protección y medidas conservacionistas en el medio en que se encuentran, para que se le pueda singularizar como recurso turístico, o de lo contrario la omisión del Estado implicaría un abandono ilícito desde el punto de vista constitucional y a la luz de los tratados internacionales vigentes en la República.

Aunado a lo anterior, conservar implica la idea de asegurar protección y permanencia, dentro del contexto de los valores y costumbres propios de los espacios urbanos y rurales, por lo que se deben admitir criterios y prácticas de sustentabilidad. La administración y el desarrollo del bien se debe proteger, así como realzar el bien según las características en su medio ambiente, por lo que si se trata de infraestructura creada por el hombre, implicará un manejo técnico, que exige medidas de mantenimiento e inversión para asegurarle el desarrollo a la hora de ser puesto en valor, como su conservación. En el caso de la Isla San Lucas, el inciso f) del numeral 38 de la Ley Orgánica del Ambiente aplica en el tanto existen no solo elementos del patrimonio natural, pues como sitio con edificaciones históricos, y arqueológicos, son importantes para la cultura e identidad nacional. En consecuencia con lo anterior, es importante citar el Código Ético Mundial para el Turismo, en cuanto señala que:

"Artículo 4 El turismo, factor de aprovechamiento y enriquecimiento del patrimonio cultural de la humanidad Los recursos turísticos pertenecen al patrimonio común de la humanidad. Las comunidades en cuyo territorio se encuentran tienen con respecto a ellos derechos y obligaciones particulares.

Las políticas y actividades turísticas se llevarán a cabo con respeto al patrimonio artístico, arqueológico y cultural, que deben proteger y transmitir a las generaciones futuras. Se concederá particular atención a la protección y a la rehabilitación de los monumentos, santuarios y museos, así como de los lugares de interés histórico o arqueológico, que deben estar ampliamente abiertos a la frecuentación turística. Se fomentará el acceso del público a los bienes y monumentos culturales de propiedad privada con todo respeto a los derechos de sus propietarios, así como a los edificios religiosos sin perjuicio de las necesidades del culto.

Los recursos procedentes de la frecuentación de los sitios y monumentos de interés cultural habrían de asignarse preferentemente, al menos en parte, al mantenimiento, a la protección, a la mejora y al enriquecimiento de ese patrimonio.

La actividad turística se organizará de modo que permita la supervivencia y el florecimiento de la producción cultural y artesanal tradicional, así como del folklore, y que no conduzca a su normalización y empobrecimiento. (lo resaltado en negrita no es del original).

La legislación costarricense regula en forma escasa la posible administración de estos sitios históricos, pero de las normas aisladas se deriva de la protección de los entornos naturales y paisajísticos, los cuales admite la intervención del hombre, pero con el ánimo de mejoramiento de parajes, no su destrucción o abandonamiento. La Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, Ley No. 7555 establece que:

“Artículo 9. Obligaciones y Derechos La declaratoria de bienes inmuebles como monumento, edificación o sitio histórico, conlleva la obligación por parte de los propietarios, poseedores o titulares de derechos reales sobre los bienes así declarados:

Conservar, preservar y mantener adecuadamente los bienes.

...

• j)[…] El Estado y la municipalidad respectiva tendrá el derecho de expropiar los bienes; podrán ejercerlo en beneficio de otras entidades públicas. Este derecho abarca los bienes que atenten contra la armonía ambiental o comporten un riesgo para conservar los que han sido declarados de interés histórico-arquitectónico.

El Poder Ejecutivo y la municipalidad respectiva estarán obligados a impedir el derribo total o parcial de una edificación protegida. Garantizar que el uso de los bienes protegidos no alterará su conservación y además será congruente con las características propias del inmueble. En todo caso, ese uso no deberá reñir con la moral, las buenas costumbres ni el orden público.” (lo resaltado en negrita no es del original) Para la Sala también es importante señalar que los artículos 71 y 72 de la Ley Orgánica del Ambiente delimitan con claridad lo anterior:

“Artículo 71.- Contaminación visual. Se considerarán contaminación visual, las acciones, obras o instalaciones que sobrepasen, en perjuicio temporal o permanente del paisaje, los límites máximos admisibles por las normas técnicas establecidas o que se emitan en el futuro.

Artículo 72.- Conservación del paisaje. La autoridad competente promoverá que los sectores públicos y privados participen en la conservación del paisaje.

Cuando para realizar una obra se necesite afectarlo, el paisaje resultante deberá ser por lo menos, da calidad igual que el anterior.” De lo anterior, se extrae no solo los fines de conservación, preservación y desarrollo, como también el principio de sostenibilidad en el aprovechamiento y desarrollo de los bienes del patrimonio artístico, arqueológico y cultural, para enriquecer su entorno mejorando su belleza escénica, y dar acceso y seguridad a los bienes y personas, según aconsejen las normas técnicas y científicas en las respectivas materias. Por otra parte, aparejado con la necesidad de la rehabilitación, restauración, mantenimiento, y control de las actividades, están al final y al cabo, los beneficios sociales y económicos de muchos sectores que dependerán de esta actividad.”

VI. SOBRE LA CONDICIÓN DE PROTECCIÓN DE LA ISLA SAN LUCAS, SU ÁREA, USOS Y LOS ESTUDIOS TÉCNICOS

• a)Situación previa de la Isla San Lucas, acreditada en el expediente legislativo nro. 21.287, que dio origen a la ley nro. 9892.

Esta isla, en el período prehispánico, estuvo ocupada por aborígenes. Fue conquistada en 1529 y, en aquel momento era denominada isla Chara. Fueron los españoles quienes la bautizaron como isla San Lúcar y luego isla San Lucas. En 1873, en gobierno del general Tomás Guardia, el Estado costarricense decidió que aquella isla San Lucas se dedicaría a un presidio. En 1930, fue cuando, aparentemente se desarrolló el conjunto de edificios patrimoniales que hoy se conocen en la isla, se construyó el edificio administrativo principal que llamaron comisaría, y el conjunto de edificaciones dedicadas a servir como cárcel. Este tuvo un cambio significativo en 1961, cuando se constituyó en una colonia penal, un experimento que algunos abogados impulsaron para que, a través del Ministerio de Justicia, el Estado pudiera cambiar las condiciones en las que estaban aquellas personas. En ese momento, se inició una colonia donde los presos estaban en condiciones de cierta libertad en la isla, habitaban casitas o podían habitar casitas los fines de semana, donde podían recibir visita conyugal, y turismo que compartía con las personas que estaban privadas de libertad en aquel tiempo.

Se desarrolló cierto comercio en la isla, con centenares de cabezas de ganado, aves de corral, se dedicaban a la agricultura durante algunos meses del año, y, a pesar de que eran tierras bastante áridas por las condiciones ambientales de la época, podían cultivar y vendían el producto que producían a los vecinos del Golfo de Nicoya que iban hasta la isla. Cuando se produjo la publicación del libro “La isla de los hombres solos” en 1963, se generó una gran conciencia sobre las condiciones inhumanas que aquellas personas estaban viviendo y habían vivido especialmente antes de la colonia agrícola penal, lo que provocó importantes cambios.

En 1974, los diputados emitieron la ley nro. 5469, en la que se dispuso: 1- traspasar la propiedad de la Isla de San Lucas, ubicada en el Golfo de Nicoya, a la Municipalidad de Puntarenas, 2- la Municipalidad debía utilizar la Isla como un centro turístico, para lo cual se le autorizó a contratar las obras de infraestructura necesarias, 3- la Municipalidad podía hacer dicha explotación por sí misma o por licitación pública, 4- en la Isla y para los fines de esa ley, se autorizó el funcionamiento de hoteles y todas aquellas actividades que fueran propias de una explotación turística bien organizada, 5- los beneficios netos que rentara la explotación turística de la Isla de San Lucas, se distribuirían en la siguiente forma: a) 45% para la Municipalidad del Cantón Central de Puntarenas, para obras de modernización de la ciudad; el 15% para el Instituto Costarricense de Turismo; y 10% para el desarrollo de la Reforma Penitenciaria; b) 10% para el Hospital Nacional de Niños; c) 5% para el Instituto Mixto de Ayuda Social; d) 5% para la Dirección de Adaptación Social, con destino a la manutención y reparación de las cárceles de la provincia de Puntarenas; e) 5% para un asilo que atienda ancianos desvalidos de toda la provincia de Puntarenas; y f) 5% para un Centro de Rehabilitación Alcohólica en Puntarenas; 6- el Instituto Costarricense de Turismo debía estudiar técnicamente el territorio de la Isla de San Lucas y su litoral, elaborar el planeamiento del Desarrollo Turístico correspondiente con la respectiva memoria descriptiva donde se establecieran las prioridades del caso y la Municipalidad quedaría obligada a respetar y a ejecutar; 7- Se dejó sin efecto, únicamente para los fines de esta ley, cualquier disposición legal que se le opusiera; y 8- se dispuso su reglamentación por parte del Poder Ejecutivo con la Corporación Municipal interesada y el Instituto Costarricense de Turismo.

Como norma transitoria, se dispuso que el traspaso a que se refiere el artículo 1º se efectuaría en el momento en que el Penal actual localizado en la Isla de San Lucas fuese trasladado a otro sitio, para lo cual se concedían dos años de plazo al Poder Ejecutivo para buscarle nueva ubicación a dicho Penal, de acuerdo a las leyes vigentes. Esta ley mantuvo su vigencia hasta que se emitió la ley nro. 9892, objeto de esta acción.

Ese desarrollo de un proyecto turístico hotelero por concesión nunca se concretó y no fue sino hasta en 1991, que se dio el cierre del penal como tal y deja de ser prisión para siempre.

Para ese entonces, la isla quedó en estado crítico, sin mayores funciones, muy poca gente, quizás un guarda, hasta que, en el año 2001, se firma el decreto ejecutivo nro. 29277-MINAE, que convirtió la isla en refugio de vida silvestre de propiedad estatal, de conformidad con lo dispuesto en el artículo 82 de la Ley de Conservación de la Vida Silvestre nro. 7317 del 30 de octubre de 1992, los artículos 32 y 42 de la Ley Orgánica del Ambiente nro. 7554 del 4 de octubre de 1995, con la siguiente fundamentación:

“1º—Que como consecuencia directa del aumento de la población, la agricultura intensiva, la urbanización, la contaminación, la sobreexplotación de los recursos marinos y otras formas de intervención en el sistema ecológico e hidrológico, los ecosistemas de humedales, principalmente en el Golfo de Nicoya, se están perdiendo en forma acelerada, lo que podría traer serias consecuencias para la biodiversidad, las actividades de pesca y la economía del país a mediano y largo plazo.

2º—Que la Isla San Lucas, ubicada en el Golfo de Nicoya, contiene rasgos culturales importantes, así como recursos biológicos asociados tanto al área insular como la zona marino costera importantes para proteger.

3º—Que el Golfo de Nicoya constituye un criadero natural de muchas especies marinas que son aprovechadas por las comunidades aledañas.

4º—Que los humedales constituyen un importante sitio de alimentación, refugio y reproducción para una gran variedad de especies silvestres, por lo que reviste especial importancia su protección y conservación.

5º—Que el manejo racional integrado de los recursos marinos contribuye a satisfacer las necesidades regionales para la investigación, recreación, educación ambiental, belleza escénica, así como el aprovechamiento de los recursos naturales renovables, explotados racionalmente.” Este mismo decreto, estableció en el artículo 2 lo siguiente:

“Artículo 2º—Declárase Zona de Protección Marino-Costera de acuerdo con lo establecido en el artículo 42 de la Ley Orgánica del Ambiente, el área marina que se describe según Hoja cartográfica del IGN denominada Golfo, Edición 3-IGNCR delimitada entre: Punto 1.- ubicado en punta Cirial de la Isla San Lucas, de coordenadas Lambert 213480 Norte (N) y 438650 Este (1), para seguir en línea recta hasta el punto de coordenadas 217850 N-445870 E (2), que en el terreno coincide con el vértice 5 del plano Catastrado Nº P-602653-85, sigue por la lindero oeste de esta propiedad hasta llegar al vértice 23 del plano Catastrado P-665031-2000, para seguir por el lidero este y norte de este lote hasta llegar al vértice 8, para seguir con rumbo general sur 38 metros aproximadamente y 40 metros al oeste aproximadamente hasta alcanzar el lote que describe el Plano Catastrado P-665032-2000 en el vértice 1 y siguiendo por ese lindero norte y oeste hasta llegar al Nº 3, planos estos que describen el inmueble que albergará las instalaciones del parque marino de Puntarenas, hoy Propiedad del INCOFER.

Este último punto de coordenadas aproximadas 217750 N- 445500 E (3), para seguir en línea recta hasta la punta Cocos de la Isla San Lucas de Coordenadas 215000 N - 438400 E(4). Prosigue por la línea de marea baja de la Playa Coco hasta llegar al punto inicial de la presente descripción de la Zona de protección marino, ubicada en Punta Cirial de coordenadas 213480 Norte (N) y 438650 Este (1). Se excluyen de la esta descripción el área existente entre Punta Cirial y Punta Cocos de la Isla San Lucas, que abarca las aguas con hasta 6 metros de profundidad ya incluidas como parte del Refugio de fauna silvestre Isla San Lucas descrito anteriormente en el artículo 1 del presente decreto.” El artículo 3, declaró el Estero de Puntarenas como Humedal del Estero de Puntarenas y Manglares Asociados, según Hojas cartográficas del IGN ahí descritas.

Y, en el artículo 4, dispuso: “La Administración de las áreas protegidas aquí declaradas será competencia del Ministerio de Ambiente y Energía y de las instituciones establecidas por la normativa vigente. Las categorías de manejo establecidas en el presente decreto se regirán de acuerdo con las disposiciones establecidas al respecto por la legislación vigente en la materia. Las actividades de extracción de especies marinas se permitirán con base en las regulaciones que establezca el Instituto de Pesca y Acuacultura (INCOPESCA).” Mientras tanto, por Decreto Ejecutivo nro. 30714 del 132 de agosto de 2002, el Poder Ejecutivo declara e incorpora al Patrimonio Histórico Arquitectónico de Costa Rica, el inmueble denominado Isla San Lucas, de la provincia de Puntarenas.

El 25 de febrero de 2005, el decreto 29277-MINAE se reformó parcialmente mediante el decreto ejecutivo 32349, derogando el artículo 2 citado previamente, y dispuso la ampliación y delimitación del área del Humedal Estero Puntarenas y Manglares Asociados, declarados en el Refugio Nacional de Vida Silvestre el área comprendida por la Isla San Lucas y el área marino costero, indicando, entre otras cosas, lo siguiente:

“Artículo 1º-Manténgase los límites del Refugio Nacional de Vida Silvestre Isla San Lucas, propiedad Estatal, cuya área comprende:

A. La porción terrestre conformada por la Isla San Lucas, ubicada en el Golfo de Nicoya, Hoja Cartográfica del IGN denominada Golfo, edición 3-IGNCR en la latitud norte 9° 56´ y longitud oeste 84° 54,5´, con una extensión de 4,62 km. cuadrados.

B. Un área marino-costera comprendida por las aguas alrededor de la Isla San Lucas hasta una profundidad de 6 m.” Artículo 2º-Amplíese y delimítese el área del Humedal Estero Puntarenas y Manglares Asociados declarados según Decreto Ejecutivo N° 29277-MINAE, cuya ubicación se localiza según las hojas cartográficas del Instituto Geográfico Nacional denominadas Golfo, edición 3-IGNCR y Chapernal edición 2-IGNCR, con un área de 4362 ha, cuya descripción es la siguiente:…

Artículo 4º-Toda obra de infraestructura a construir, sean estas atracaderos, muelles, centros de acopio de pescado o cualquier otra afín a la actividad pesquera o turística o de otra índole, dentro de los boquetes actuales o dentro de la zona de amortiguamiento, que corresponde a la franja de 20 m de ancho equidistante a la línea de costa sur a lo largo del estero Puntarenas y que va desde el punto 1 de coordenadas 217 923 N - 442977 E hasta el punto 16 de coordenadas 218394 N - 450365 E, deberá ser edificada sobre pilotes o sobre muelles flotantes, dependiendo de su destino, tamaño o capacidad de carga.

Artículo 5º-La Administración de las áreas protegidas aquí declaradas será competencia del Ministerio de Ambiente y Energía y de las instituciones establecidas por la normativa vigente. Las categorías de manejo establecidas en el presente decreto se regirán de acuerdo con las disposiciones establecidas al respecto por la legislación vigente en la materia. Las actividades de extracción de especies marinas se permitirán con base en las regulaciones que establezca el Plan de Manejo de estas Áreas Silvestres Protegidas, su Reglamento de Uso y el Instituto Costarricense de Pesca y Acuicultura (INCOPESCA).” Posteriormente, por decreto ejecutivo nro. 33327, del 30 de agosto de 2006, se rectificaron, delimitaron y ampliaron los límites del Refugio Nacional de Vida Silvestre Isla San Lucas, propiedad Estatal, declarado, según Decreto Ejecutivo 29277-MINAE, publicado en La Gaceta nro. 30 de lunes 12 de febrero del 2001 y su modificación mediante Decreto Ejecutivo 32349-MINAE publicado en La Gaceta nro. 92 de viernes 13 de mayo de 2005 y se estableció lo siguiente:

“Artículo 3º-Toda obra de infraestructura a construir, sean estas atracaderos, muelles, centros de acopio de pescado o cualquier otra afín a la actividad pesquera o turística o de otra índole, dentro de la zona de amortiguamiento, que corresponde a la franja entre el límite sur del Área Silvestre Protegida Humedal Estero Puntarenas y Manglares Asociados y la línea de costa de la ciudad de Puntarenas, que va desde el punto 1 de coordenadas 218500 N-443000 E hasta el punto 5 de coordenadas 218390 N-450480 E, deberá ser edificada sobre pilotes o sobre muelles flotantes, dependiendo de su destino, tamaño o capacidad de carga. Para construir la citada infraestructura, los interesados deberán solicitar la aprobación de la División Marítimo Portuaria del Ministerio de Obras Públicas y Transportes; una vez obtenida dicha aprobación, la Municipalidad de Puntarenas procederá a otorgar el permiso correspondiente.

Artículo 4º-La Administración de las áreas protegidas aquí declaradas será competencia del Ministerio de Ambiente y Energía y de las instituciones establecidas por la normativa vigente. Las categorías de manejo establecidas en el presente decreto se regirán de acuerdo con las disposiciones establecidas al respecto por la normativa jurídica vigente en la materia. Las actividades de extracción de especies marinas se permitirán con base en las regulaciones que establezca el Plan de Manejo de estas Áreas Silvestres Protegidas, su Reglamento de Uso y el Instituto Costarricense de Pesca y Acuicultura (INCOPESCA).

Artículo 5º-El presente decreto no limita o modifica la condición del estero de Puntarenas como medio de transporte o navegación. Se mantiene la libre navegación por el mismo, y se autorizan las labores que se consideren necesarias para darle el mantenimiento adecuado con el objetivo de que no pierda su condición de navegabilidad. Cualquier otra actividad que requiera realizarse dentro de la porción del Estero de Puntarenas que forma parte del Área Silvestre Protegida deberá contar con el permiso respectivo por parte de la Oficina Subregional del SINAC-MINAE ubicada en Esparza de Puntarenas y a criterio de ésta.

Artículo 6º-Declárese de interés público toda actividad o proyecto orientado a recuperar, y conservar la calidad de las aguas y los recursos naturales del Estero de Puntarenas, así como su uso racional.” El 25 de enero de 2008, el Poder Ejecutivo emitió el Decreto nro. 34282-TUR-MINAE-C, que dispuso lo siguiente: en el artículo 1 una rectificación, delimitación y ampliación del área del refugio, y en lo demás lo siguiente:

“Artículo 2º-Declárese de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos del presente decreto, así como la conservación y restauración de las edificaciones del antiguo penal en la Isla San Lucas. Las dependencias de la Administración Pública y del Sector Privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la Isla.” “Artículo 3º-Créase una Comisión Permanente conformada por los Ministros Rectores de Cultura, Juventud y Deportes, Turismo y Ambiente y Energía, o sus representantes y por el Alcalde de Puntarenas o su representante, encargada de velar por el manejo racional de los terrenos de administración municipal. La Comisión tendrá una Secretaría General de Coordinación cuyo titular será designado por el Presidente de la República.” “Artículo 4º-Queda prohibido en el Área de Administración Municipal lo siguiente:

• 1)El abastecimiento de combustibles y sus derivados con el fin de evitar la contaminación ambiental.
• 2)El uso del agua para actividades turísticas en contra de las normas técnicas dictadas por el Departamento de Aguas del Minae en colaboración con el Instituto Costarricense de Acueductos y Alcantarillados, si se requiriere, de manera que se preserve el caudal ecológico necesario para el mantenimiento del ecosistema de la isla.
• 3)El uso del Patrimonio Cultural en contra de las normas técnicas que dicte el Ministerio de Cultura, Juventud y Deportes.
• 4)La pesca y la cacería.
• 5)Otras limitaciones que establezca la Comisión Permanente conforme a los estudios técnicos pertinentes.” “Artículo 5º-Para el desarrollo de actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, el ICT elaborará un Plan Maestro de Desarrollo Turístico Sostenible, que comprenderá un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural esa área específica. El Plan Maestro de Desarrollo Turístico Sostenible contendrá al menos los siguientes elementos:
• a)Estudio de zonificación, por el que se definen los usos de suelo.
• b)Reglamento de zonificación (ordenanzas y reglamentos) que define y establece los criterios y normas sobre uso del suelo, construcción y uso de edificaciones, facilidades, servicios públicos, áreas de amortiguamiento, entre otros, necesarios para el desarrollo turístico limitado y sostenible y para la protección del patrimonio cultural de la Isla.
• c)Plan de estrategias para la ejecución del proyecto, que establece los programas, proyectos y actividades, tanto por la iniciativa privada como por la inversión pública en aras del desarrollo sostenible y de protección del patrimonio cultural.

El Plan Maestro de Desarrollo Turístico Sostenible se someterá a la Secretaría Técnica Nacional Ambiental del Minae y al Ministerio de Cultura, Juventud y Deportes para su aprobación, de conformidad con los requisitos y procedimientos establecidos por el ordenamiento jurídico.

El área de administración municipal será regulada por el citado Plan Maestro de Desarrollo Turístico Sostenible y no le será aplicable el Plan de Manejo del Refugio, salvo las reglas legales generales pertinentes. El MINAE ajustará su Plan de Manejo conforme a las nuevas dimensiones del refugio y al Plan Maestro de Desarrollo Turístico Sostenible.

Artículo 6º-De los recursos que corresponden a la Municipalidad de Puntarenas conforme al artículo 5 de la Ley número 5469, el veinticinco por ciento será destinado por la Municipalidad de Puntarenas para el mantenimiento de las instalaciones y servicios prestados por el Minae en el Refugio de Vida Silvestre de la Isla de San Lucas.

Artículo 7º-El Minae continuará utilizando las instalaciones que ocupa actualmente en la Isla de San Lucas, tales como las oficinas, dormitorios de los guarda parques y cualquier otra edificación que ocupan actualmente en sus funciones. Podrán ser trasladados siempre y cuando les sean proporcionadas otras instalaciones en iguales o mejores condiciones que las actuales.” Dicho decreto fue cuestionado ante este Tribunal y por sentencia nro. 2010-13099, de las 14:56 horas del 4 de agosto de 2010, se anuló por inconstitucional, únicamente el artículo 1° del Decreto Ejecutivo nro. 34282-TUR-MINAET-C de 25 de enero de 2008, publicado en el Alcance 10 a La Gaceta No. 28 del 8 de febrero de 2008, solo en cuanto modificaba el inciso A. del artículo 1 del Decreto Ejecutivo nro. 33327-MINAE, salvo la adición de la porción de agua que se agregó al Refugio Nacional de Vida Silvestre Isla San Lucas y el apartado B que mantienen vigencia. Es decir, el resto de su contenido se encontraba vigente al momento en que fue emitida la ley nro. 9892, objeto de esta acción.

Asimismo, producto de esa propia regulación descrita, ya existían planes de manejo previos a la ley desde el año 2012 emitidos por el SINAC que, basados en estudios técnicos, definen áreas y actividades a realizar, y que incluso fueron actualizados de previo a la aprobación de esta ley, los que, además, son coherentes con lo desarrollado en esta. Veamos, por ejemplo, algunos aspectos de interés del diagnóstico de la actualización del Plan General de Manejo del Refugio Nacional de Vida Silvestre de la Isla San Lucas (junio 2020) https://www.sinac.go.cr/ES/planmanejo/Plan%20Manejo%20ACOPAC/Refugio%20Nacional%20de%20Vida%20Silvestre%20Isla%20San%20Lucas%20(2020).pdf:

“…El RNVSISL posee una riqueza de ictiofauna que podría utilizarse no sólo en la pesquería sino también en el turismo, ya que, en los últimos años, actividades recreativas como el buceo y el snorkeling han aumentado notablemente a nivel nacional y, en particular en el litoral Pacífico… Se cree que las áreas de manglar podrían ser utilizadas por cocodrilos y tortugas terrestres como sitios de alimentación y refugio, mientras que algunas playas con sustrato arenoso como en el caso de El Coco y Hacienda Vieja, son utilizadas para anidamiento por tortugas marinas, como la tortuga lora (Alfaro S. com. per. 2006). Teniendo en cuenta que los reptiles semiacuáticos y acuáticos como las tortugas terrestres, marinas, y los cocodrilos, son algunas de las especies de reptiles más demandadas para usos comerciales y turísticos, estas áreas podrían ser utilizadas para desarrollo de actividades turísticas que no alteren la ecología ni el comportamiento de las especies…

2.3 Servicios ecosistémicos que brinda el ASP Los ecosistemas del RNVSISL proporcionan una serie de beneficios a las comunidades y al país en general.

El informe sobre la “Evaluación de los Ecosistemas del Milenio, 2005”, clasifica los servicios de los ecosistemas en cuatro categorías:

• 1)Servicios de apoyo: Son los procesos ecológicos necesarios para producir y mantener todos los demás servicios.
• 2)Servicios de aprovisionamiento: Productos obtenidos directamente de los ecosistemas como alimento, madera, agua potable, entre otros.
• 3)Servicios de regulación: Son los beneficios obtenidos de manera indirecta de los ecosistemas, como resultado de su funcionamiento, como la purificación del agua, control de la erosión, control climático, entre otros.
• 4)Servicios culturales: Beneficios no materiales que la gente obtiene de las experiencias estéticas, turismo o enriquecimiento espiritual. Mejoran la calidad de vida de las personas.

La siguiente ilustración, muestra los principales servicios ecosistémicos que brinda el RNVSISL identificados para cada una de las cuatro categorías indicadas.

2.4 Análisis FODA A continuación, se presentan los resultados del análisis FODA aplicado en el primer taller participativo con actores clave y avalado en el segundo taller participativo.

2.4.1 Fortalezas - El marco legal del ASP (Decretos Ejecutivos 29277- MINAE del 12 de febrero del 2001, No.30714-C del 26 de Setiembre de 2002, No.34282-TUR-MINAEC del 25 de enero de 2008, No.13099 de agosto del 2010, Resoluciones de Sala Cuarta Voto 08928 del 18 de agosto del 2004, Voto 13099 del 4 de agosto del 2010, la Ley de Biodiversidad, entre otros), para la gestión del sitio y coordinación interinstitucional (MINAE, ICT, Municipalidad de Puntarenas, Ministerio de Cultura).

- Las normas existentes que permiten el desarrollo de servicios no esenciales por parte de actores locales - Las herramientas de planificación del ASP (Plan General de Manejo, planes específicos, efectividad de manejo, entre otros) - La cobertura boscosa del refugio (cobertura vegetal, bosque tropical seco, manglar) - El atractivo turístico, ambiental y cultural, de gran valor histórico, arqueológico, geológico, con belleza escénica, flora, fauna, senderos y playas abiertas al visitante, que han posicionado a San Lucas en el mercado turístico.

- La red de senderos que facilitan el desarrollo de acciones para el uso turístico y control de incendios forestales en el ASP -La concepción del refugio como fuente de desarrollo, generador de recursos socioeconómicos para la región.

-Un sitio de importancia para el resguardo de usuarios del Golfo, en caso de eventos climatológicos que puedan presentarse.

-La capacidad de gestión instalada (aunque sea mínima, se tiene presencia Institucional (SINAC, manejo del fuego) -Se cuenta con apoyo de Pro-parques, INCOP, empresas privadas turísticas (operadores turísticos) y asociaciones locales que colaboran con acciones en la isla.

- La ubicación geográfica del refugio, siendo una Isla accesible ubicada a 6 km de la costa de Puntarenas.

-El área marina pesca responsable como zona de amortiguamiento Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas 2.4.2 Debilidades - Carencia de recursos (humano, equipo, materiales, infraestructura, servicios básicos) para gestionar adecuadamente el Área Silvestre Protegida.

- La pérdida de infraestructura en varios sectores de las ruinas del antiguo Presidio falta de un plan de atención por parte de Patrimonio cultural, que contemplara la isla como un circuito.

- La existencia de varios sitios de fácil acceso a la isla, que generan inseguridad al visitante expuesto a robos y asaltos, y que además dificultan las labores de prevención, protección y control del recurso natural, cultural, histórico y arqueológico.

- La contaminación generada por visitantes no regulados en sitios sin vigilancia - La presencia de especies invasoras de flora en el sitio.

- La poca extensión marina perteneciente al refugio.

- El limitado conocimiento del recurso marino del refugio (vacíos de información) - El limitado conocimiento del sitio sobre el recurso natural y arqueológico entre los diferentes actores (Municipalidad de Puntarenas, ICT, SINAC y Ministerio de Cultura) y falta de socialización de la información existente.

- La inexistencia de demarcación física del área marina del refugio, falta de definición técnica de la normativa (6 metros en el área marina no inmersa dentro del área marina protegida) - La falta del reglamento de uso público para regular la actividad turística en el refugio.

2.4.3 Oportunidades -El acceso a servicios turísticos marinos en el Golfo de Nicoya -La existencia del Fidecomiso de INCOP-ICT-BN - Las actividades culturales (deportivas, religiosas, tradiciones locales).

- La existencia de grupos organizados (actores locales) que podrían participar en brindar servicios No Esenciales en el Refugio.

- El interés académico para realizar investigación en diferentes temas (recurso marino, arqueológico, flora, fauna, entre otros para llenar los vacíos de información).

- La existencia de actores claves (sector público, ONGs, cámaras, sector privado) para generar alianzas.

-La posibilidad de convenios con diferentes instancias (Municipalidad de Puntarenas, ONGs, entre otros) -La existencia de grupos de voluntariado organizados dispuestos a colaborar en el ASP.

- La actualización del Plan General de Manejo, con participación de actores clave - La demanda del turismo nacional por conocer el valioso aporte histórico cultural y natural del ASP.

-La posibilidad de convertir el sitio en un atractivo para el sector de cruceros que llegan a Caldera y Puntarenas.

-La existencia de diferentes fuentes (investigaciones, entre otros) que pueden ser aprovechadas para llenar vacíos de información.

-El interés de múltiples instancias públicas y privadas de aprovechar y proteger los recursos del refugio y área aledaña.

2.4.4 Amenazas - El vandalismo (robos, asaltos) - La cacería y pesca ilegal (existencia de cazadores y pescadores ilegales) - El Huaquerismo - La contaminación de residuos sólidos que llegan a la Isla, Golfo de Nicoya -Las especies Invasoras (teca, mamón).

- El abandono de animales domésticos (perros y gatos) en la isla.

- Un turismo ilegal, utilización del recurso presente en la Isla (arqueológico, cultural y natural por los visitantes) -El cambio climático -La sobre explotación del recurso marino -La existencia de propuestas o intensiones de desarrollo turístico de alto impacto sobre el refugio.

Los resultados del análisis anterior, permiten conocer cuáles aspectos deben priorizarse las acciones a implementar para generar cambios significativos que incidan de forma positiva en los elementos focales de manejo del RNVSISL. Estas acciones se ven reflejadas dentro de las metas y actividades propuestas en cada una de las Áreas estratégicas. Es importante destacar que las debilidades existentes son las que deben de ser priorizadas, en vista que al realizar esfuerzos se estará fortaleciendo la capacidad para disminuir las amenazas…

3. MARCO METODOLOGICO DEL PROCESO PARA LA ACTUALIZACIÓN DEL PGM 3.1 Principios considerados para la actualización del PGM La actualización de este Plan General de Manejo, se desarrolló considerando las políticas y normas que rigen la elaboración de estos, así mismo consideró la participación ciudadana como un elemento integrador entre la protección y el desarrollo, así mismo es una forma de conocer las formas tradicionales y ancestrales que se han practicado en el ASP.

Así mismo considera aspectos como el enfoque ecosistémico con la finalidad de garantizar los bienes y servicios para satisfacer las necesidades en el tiempo.

También consideró los aspectos como los objetivos de creación del ASP y la necesidad de que la propuesta abarque practicas sostenibles de conservación y desarrollo, todo enfocado en el bienestar de las personas y por supuesto que generando prácticas y estratégicas que promuevan la perpetuidad de los recursos naturales y culturales…

4 MARCO ESTRATÉGICO PARA LA GESTIÓN DEL ASP 4.1 Visión del RNVSISL “Un área silvestre protegida consolidada administrativamente, con una estructura adecuada que le permita su gestión eficaz y eficiente cumpliendo los objetivos de conservación, integrada en el ámbito Local y Nacional, con mecanismos reales de participación, que le permitan convertirse en un polo de desarrollo y así contribuir en el mejoramiento de la calidad de vida de los habitantes de las comunidades locales vinculadas del Golfo de Nicoya”.

Lo anterior permitirá que:

- El Refugio Nacional de Vida Silvestre, se regenere desde el punto de vista biológico.

- Los recursos históricos arquitectónicos de las ruinas del antiguo Penitenciario, estén restaurados y con el mantenimiento adecuado por parte del Ministerio Cultura.

- Los atractivos turísticos del Refugio desarrollados y gestionados sosteniblemente.

4.2 Misión del RNVSISL “Es un área silvestre protegida con una declaratoria de patrimonio histórico, donde se realiza la conservación y el manejo integral del patrimonio cultural y natural, que brinda facilidades para la investigación científica, manejo y recuperación de vida silvestre, con opciones de turismo ecológico y otras actividades afines a la categoría de manejo, contribuyendo con ello al mejoramiento de la calidad de vida de los habitantes de las comunidades locales circundantes, impulsada por un proceso participativo de instituciones estatales, organizaciones no gubernamentales, sociedad civil y empresas locales lideradas por el SINAC-MINAE”.

4.3 Elementos focales de manejo Los elementos focales de manejo (EFM) consisten en un proceso de selección de un reducido número de recursos de la biodiversidad que serán prioridad para la gestión del Refugio Nacional de Vida Silvestre Isla San Lucas. Los elementos focales de manejo orientan a la administración del Refugio en la asignación y prioridad de recursos.

Como resultado del análisis en el taller participativo, para esta ASP se definieron 4 Elementos Focales de Manejo que se describen a continuación.

4.3.1 Remanente de bosque tropical seco El RNVSISL posee un remanente del bosque seco tropical, que en conjunto con la Zona Protectora Tivives es prácticamente el último reducto protegido de la región Pacífico Central. Es considerado como el ambiente terrestre más amenazado por la intervención humana y uno de los más escasos en América Central (Janzen, 1988). Es característico de este bosque dos estaciones, la seca entre los meses de diciembre y abril y la lluviosa de mayo a noviembre. Especies de flora muy comunes son guanacaste (Enterolobium cyclocarpum), cenízaro (Pithecelobium saman), chaperno (Lonchocarpus minimiflorus), guacimo (Guazuma ulmifolia), jobo (Spondias mombin), pochote (Bombacopsis quinatum) y roble sabana (Tabebia rosea); varias de estas especies producen llamativas floraciones en la época seca…

Las amenazas identificadas para este EFM son: Los incendios generados por las actividades de cacería ilegal; la introducción de especies exóticas por diferentes medios y el cambio climático, especialmente por la variación de la precipitación a lo largo del año que ocasiona principalmente prolongadas sequías. Importante indicar que este tipo de bosque presente en la Isla en su totalidad es secundario (ICONVIS-UNA, 2006). Los principales usos de importancia sociocultural y económica que se puede realizar de este Elemento Focal de Manejo son: el turismo sostenible, la recreación, la educación ambiental, la investigación y la fotografía.

4.3.2 Recurso marino-costero El RNVSISL posee importantes recursos marino-costeros característicos de playas arenosas, playas rocosas, islotes, acantilados y manglares…Según estudios de ICONVIS-UNA (2006), dentro de la zona marina costera del Refugio se identificaron 63 especies de peces, donde las familias más representadas fueron la Haemulidae y Lutjanidae. Playa Hacienda Vieja, El Coco y Tumbabote son los sitios que presentaron mayor riqueza de ictiofauna, por tanto, podrían utilizarse para actividades turísticas recreativas como el snorkel y como áreas de manejo para el cultivo de especies que pueden ser explotadas comercialmente en el Golfo.

Las amenazas más comunes para este EFM son: La contaminación por diferentes tipos de desechos que son arrastrados por las corrientes del Golfo de Nicoya y que son depositados en las distintas partes de la zona marino costera del Refugio; la extracción descontrolada de moluscos (conchas y caracoles) y crustáceos; destrucción del fondo marino por el uso de artes no permitidas como anclas, nasas, y trasmallos.

Los usos de importancia sociocultural y económica que se pueden hacer de este EFM son: la pesca recreativa y doméstica, el turismo sostenible, la recreación, la educación, la investigación, el buceo recreativo y la fotografía.

4.3.3 La infraestructura del antiguo Presidio declarado Patrimonio arquitectónico Mediante Decreto Ejecutivo 24520-C del 25 de agosto de 1995, se declara Patrimonio Cultural las ruinas del antiguo presidio dándole una envergadura y un renombre sin precedentes a una ASP. Se considera que la parte arquitectónica y grafiti de la antigua Penitenciaría es sumamente importante ya que evidencia la historia de cómo el Estado controlaba y reprimía a los privados de libertad…

Las amenazas para este Elemento Focal de Manejo son: Deterioro y/o alteración significativa en los edificios y su estructura, por falta de gestión de las instituciones públicas responsables del Patrimonio Cultural Nacional (Ministerio de Cultura, ICT, Municipalidad de Puntarenas), para restaurar y mantener en mejores condiciones la infraestructura. No hay un plan de restauración y mantenimiento permanente, se hacen actividades esporádicas; la delincuencia y vandalismo ocasionada por personas que no tienen el conocimiento e información adecuada del legado histórico cultural presente en el refugio; y finalmente el turismo no regulado que transita por los diferentes sitios ocasionando deterioro de algunas estructuras y alteración de los grafitis existentes.

Los usos de importancia sociocultural y económica que se pueden hacer de este EFM son: el turismo sostenible, la recreación, la educación, la investigación y la fotografía.

4.3.4 Los sitios arqueológicos Entre el 4 y 11 de enero del 2008, 24 de mayo y 11 de junio del 2009, el Departamento de Antropología e Historia del Museo Nacional de Costa Rica y la Universidad de Miami realizaron pruebas de excavaciones arqueológicas en un sector de Playa Cocos donde existe un cementerio, descubriendo que el pequeño muro que rodea la excavación es muy reciente, pues está sobrepuesto a un camino de piedras, semejante al camino de acceso al edificio administrativo, que a su vez está encima de los restos humanos encontrados. En las excavaciones horizontales más elaboradas en el cementerio, en la primera excavación de 4 x 7 metros se encontró 48 botones, una bala, una hebilla, un fragmento de metal, un casquillo de bala y restos humanos de 9 individuos. En la segunda de 3 x 3 metros hubo problemas de derrumbes y se encontró 5 botones, un colgante metálico y restos humanos de 2 individuos.

Esto evidencia que el cementerio es bastante antiguo, se encontró en las 3 excavaciones y a diferentes profundidades, un molar humano, dos fragmentos de hueso del pie, un tornillo metálico, un fragmento de costilla, un clavo de metal, un fragmento de mandíbula derecha con 4 dientes, una botella, una falange humana, 4 posibles falanges humanas, una punta de dedo, otros huesos humanos pequeños, dos clavos, 3 botones plásticos, varios restos óseos humanos (vertebras, talón y costillas), un botón de madera, dos botones metálicos con el escudo de armas de Costa Rica, más restos óseos que corresponden a un individuo completo ubicado entre los 170 a 200 centímetros bajo la superficie, el cráneo presenta agujeros que se supone son de balas.

Los botones con el escudo de armas corresponden al periodo de 1848-1906, se usaban en uniformes de gala de oficiales del ejército... La principal amenaza a este EFM es el huaquerismo que lo realizan personas que buscan este tipo de recursos arqueológicos para sus propias colecciones o bien para el tráfico de los mismos.

Los usos de importancia sociocultural y económica que se pueden hacer de este EFM son: el turismo sostenible, la recreación, la educación, la investigación y la fotografía…

4.4 Objetivos del RNVSISL Para el RNVSISL se definen los siguientes objetivos generales que responden a la justificación de la declaratoria de ASP así establecido en el Decreto Ejecutivo que crea el ASP:

• a)Conservar una muestra del ecosistema bosque tropical seco.
• b)Proteger los recursos hídricos y paisajísticos.
• c)Conservar los recursos hídricos y paisajísticos.
• d)Proporcionar oportunidades para la investigación y estudios técnicos, la educación ambiental, la recreación y el turismo sostenible.
• e)Contribuir en el desarrollo socioeconómico de los habitantes de las comunidades locales.

Los anteriores objetivos fueron los que se visualizaron para crear esta área silvestre, cabe destacar que están bien fundamentados sin embargo para ejercer una mejor gestión sobre el ASP y garantizar la perpetuidad de los recursos naturales, estos deben vincularse con los objetivos, estrategias, acciones y planes mencionados en el presente plan de manejo.

4.5 Objetivo general del plan general de manejo Orientar la gestión del RNVSISL, hacia el cumplimiento de sus objetivos de conservación a largo plazo, fundamentado en líneas de acción estratégicas y objetivos de manejo para los recursos naturales y culturales del ASP.

4.5.1 Objetivos específicos a) Gestionar la protección de los recursos naturales y culturales existentes en el Refugio.

• b)Propiciar las condiciones para la adaptación de los sistemas marino-costeros y terrestres al cambio climático.
• c)Promover la sensibilización de los visitantes y pobladores locales hacia la conservación de la biodiversidad marino-costera y terrestre presente en el Refugio y los bienes y servicios que se obtienen.
• d)Ofrecer al público oportunidades de educación y recreación compatible con los recursos del Refugio.
• e)Promover alianzas con actores que apoyen el desarrollo de acciones a favor de los objetivos de manejo del Refugio.4.6 Líneas estrategias Estas plantean los cambios que se pretenden lograr en un horizonte de planificación de 10 años, con un planteamiento de revisiones periódicas cada 2 años. Están dirigidas hacia la reducción de amenazas, restauración, incremento de capacidades, mejora de la sostenibilidad de los recursos y generación de información.

Para el Refugio Nacional de Vida Silvestre Isla San Lucas se definieron 8 estrategias de conservación, cada una de ellas con objetivos, metas y acciones planteadas con el fin de cumplir con el cometido de este plan.

4.6 Líneas estrategias Estas plantean los cambios que se pretenden lograr en un horizonte de planificación de 10 años, con un planteamiento de revisiones periódicas cada 2 años. Están dirigidas hacia la reducción de amenazas, restauración, incremento de capacidades, mejora de la sostenibilidad de los recursos y generación de información. Para el Refugio Nacional de Vida Silvestre Isla San Lucas se definieron 8 estrategias de conservación, cada una de ellas con objetivos, metas y acciones planteadas con el fin de cumplir con el cometido de este plan.

…4.7.1 Zona de mínima o nula intervención (ZMNI) Los sectores del ASP definidos en esta categoría tienen un nivel de intervención mínimo o nulo. El objetivo o la condición deseada es mantener un estado inalterado o con un impacto casi imperceptible.

En este tipo de zona se plantean objetivos orientados a una protección absoluta, el desarrollo de una actividad turística de muy bajo impacto e intensidad y de poca frecuencia, así como la investigación y un uso administrativo dirigido al control y protección.

Esta zona está compuesta por: las islas Cocineras, Aves y Pan de Azúcar, las cuales se ubican en el límite sur del ASP y sirven de refugio a varias especies de aves marinas; el área del Humedal o manglar; las nacientes de agua de las Quebradas Hacienda Vieja, Control, Quebrada Coyol y sus zonas de protección; Cerro Control y Cerro Cirial; Punta Barrigona, Punta Tumba Bote y Punta Manzanillo. (Figura 14)…

4.7.2 Zona de baja intervención (ZBI) En esta categoría se propone que las intervenciones sean de un nivel muy bajo, aunque con mayores posibilidades para el desarrollo de prácticas de manejo y otras actividades. Se espera que cumpla objetivos orientados a un nivel estricto de sostenibilidad en el manejo y aprovechamiento de algunos recursos del ASP.

Se pueden permitir prácticas de uso administrativo o especial aprovechamiento regulado de recursos y un turismo de bajo impacto, pero con un poco más de intensidad y frecuencia que en la zona de mínima intervención.

Esta zona está compuesta por los sitios arqueológicos presentes en el RNVSISL; el área marina alrededor del ASP; Playa Cirialito, Playa Barrigona, Playa Bella vista, Playa Manzanillo y Playa Pilitas; el Sendero a Punta vigilante; Punta Vigilante, Punta Cirial, Punta El Coco y Punta Cirialito.

Esta área mide 401.6 ha que corresponde al 90.1% del área total del ASP (Figura 15).

En la zona de manejo de baja intervención se permite lo siguiente:

- La investigación científica o el monitoreo autorizado de acuerdo con la normativa vigente.

- Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, establecidos en la normativa y protocolos previamente autorizado por el SINAC.

- Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, siempre que resulten imprescindibles.

- Se permite la visita, con fines educativos, científicos, de prevención, protección y control y cualquier otra actividad definida por la administración del ASP.

- Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del AP.

4.7.3 Zona de mediana intervención (ZMI) El espacio o sitios que se defina para esta categoría tendrán una posibilidad de intervenciones de mediana intensidad, frecuencia e impacto en las prácticas y actividades que se puedan desarrollar.

Los objetivos van dirigidos a contar con espacios donde se puedan aprovechar los recursos donde el impacto sobre los mismos se pueda controlar, aunque con límites razonables establecidos por la legislación.

Se mantienen los recursos hídricos, ecosistemas, hábitat, biodiversidad y recursos culturales en un estado de salud aceptable.

La ZMI la integra el Sendero a Playa Cirial, el Sendero a Punta Cañón; Punta Cañón; Playa El Inglés, Playa El Limón, Playa Hacienda vieja y Playa Cirial.

Esta zona abarca una extensión de 15.2 Ha., que corresponde al 3.4% del territorio del refugio…

En esta zona de manejo se permite:

- La investigación científica y el monitoreo autorizado de acuerdo con la normativa vinculante.

- Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, previamente autorizado por SINAC.

- Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, siempre que resulten imprescindibles.

- Se permite la instalación de equipo e infraestructura de uso administrativo para la gestión del Refugio, siempre que resulten imprescindibles.

- Se permiten las visitas para grupos de personas organizadas, con fines turísticos, educativos, recreativos y científicos.

- Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del ASP.

- El aprovechamiento sostenible de los recursos marinos de acuerdo con la legislación nacional ambiental vigente y según los planes de manejo de recursos específicos que se elaboren.

- La práctica de usos y aprovechamientos tradicionales de acuerdo con el marco jurídico vigente y los objetivos de la categoría de manejo.

4.7.4 Zona de alta intervención (ZAI) Los sectores del ASP que se definan con esta categoría tendrían un nivel de intervención y uso mucho más alto que en las otras zonas. El objetivo o la condición deseada siempre será mantenerse dentro de un estado ambiental conforme a la categoría de manejo establecida para el RNVSISL, pero dejando más oportunidad para el desarrollo de prácticas y actividades propias de una alta intervención. Igual que en las demás zonas los objetivos de conservación y desarrollo están dirigidos a contar con espacios en los que se pueda mantener una actividad turística sostenible de carácter permanente y más intensiva, actividades productivas o de aprovechamiento de recursos más abiertas, sin dejar de tener controles y normas estrictas. La intervención para uso administrativo y especial tiene mayores posibilidades de desarrollarse mientras esté debidamente planificada y controlada (SINAC, 2016).

Esta zona la integra parte del área marina de la Bahía San Lucas; la Infraestructura del antiguo Presidio; Playa Cocos y Playa Tumbabotes; el Sendero a Playa Cocos, el Sendero a Playa Tumbabotes, el Sendero al Corral de Piedra, el Sendero a la Antigua Porqueriza, el Sendero a Playa El Inglés, el Sendero a Playa Hacienda vieja, el Sendero a Playa Bella vista, el Sendero a Punta de Oro (Punta El Coco), el Sendero Los Ceibos, el Sendero Mirador de Islas, el Sendero El Trogón; así como los dos sitios para infraestructura de Prevención, Protección y Control a ubicar en Tumbabote y Hacienda vieja. Así como los sitios de la parcela de Teca y la nueva casa de Guardaparques.

Esta zona abarca una extensión de 27 Ha., que corresponde al 6.1% del territorio del refugio En esta zona de manejo se permite:

-Actividades recreativas y turísticas: caminatas guiadas por senderos autorizados para la observación de flora, fauna y recursos históricos; la fotografía y video no comercial.

-La construcción de infraestructura para la atención de visitantes (por ejemplo, centros de visitantes, baterías sanitarias, senderos, miradores, plataformas, cafetería, tiendas de artesanía).

-La construcción de infraestructura para la administración del Refugio.

-La investigación científica y el monitoreo autorizado de acuerdo a la normativa vinculante.

-Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, previamente autorizado por el SINAC.

- Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, previamente autorizado por el SINAC.

-Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del ASP.

-En esta zona también se permite la instalación y operación de servicios no esenciales aprobados con base en la normativa vigente…

4.9 Planes específicos Los Planes Específicos (PE) plantean un nivel más detallado de planificación, orientado principalmente a la implementación del PGM, diseñados en función de las Objetivos de conservación priorizadas, pueden incluir más de un objetivo, así como acciones y actividades anuales para su cumplimiento.

Las actividades de los PE deben proyectarse en su alcance por períodos anuales de ejecución por medio de los planes operativos (Plan Presupuesto), con su respectivo financiamiento y los indicadores requeridos para el monitoreo del impacto de su aplicación (SINAC, 2016).

Producto de la actualización del Plan General de Manejo del RNVSISL, se identifican los siguientes 14 planes específicos, en función de las metas establecidas en las Objetivos de conservación del Plan General de Manejo…” Ahora, dado que aquí se cuestiona la falta de fundamentación objetiva y técnica que dio origen a la propuesta legislativa y culminó con la ley en cuestión, resulta de plena importancia referirnos al trámite del expediente legislativo nro. 21.287.

b- Sobre el expediente legislativo nro. 21.287, que dio origen a la ley nro. 9892.

La situación fáctica y jurídica descrita en el apartado anterior, la falta de presupuesto y otros efectos adversos que no han permitido una adecuada protección de la zona, promovió el interés de varios diputados y diputadas a proponer un proyecto de ley que mejorara y protegiera mejor esta zona en cuestión, indicando lo siguiente en la exposición de motivos:

“…Por su ubicación en el Golfo de Nicoya, la Isla San Lucas debe estar orientada a la protección de la vida silvestre y la conservación de especies. Por lo anterior, en el año 2001 se emitió el Decreto Ejecutivo Nº 29277-MINAE, mediante el cual se declara la Isla San Lucas Refugio Nacional de Vida Silvestre, con el propósito de protegerla de la contaminación, la sobreexplotación de los recursos marinos y otras formas de intervención en el sistema ecológico e hidrológico, el aumento de la población, la urbanización y vigilar los ecosistemas de humedales.

Decreto del 2008 Adicionalmente, se emitió un nuevo Decreto Ejecutivo N.° 34282-TUR-MINAET-C de 25 de enero de 2008, mediante el cual modificaba el anterior, y se rectifica, delimita y amplía los límites del Refugio; además, declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla.

Entre los principales contenidos del dicho Decreto, se encuentran los siguientes • Deja manifiesta la preocupación por el deterioro de las estructuras del antiguo penal e indica que estas requieren de una intervención inmediata para su debida restauración y conservación, como lo prevén las convenciones internacionales sobre la materia suscritas por Costa Rica.

• Que corresponde al Instituto Costarricense de Turismo elaborar el planeamiento del desarrollo turístico de la Isla conforme lo establece el artículo 6 de la Ley 5469.

• Que es necesario modificar el Decreto Ejecutivo N° 29277-MINAE para permitir la protección y reconstrucción de las edificaciones en la Isla San Lucas declaradas Patrimonio Histórico - Arquitectónico por el Ministerio de Cultura.

• Establece el desarrollo turístico limitado y sostenible y la protección del patrimonio cultural de la Isla de San Lucas, para ello, se deben precisar y ampliar los límites del Refugio Nacional de Vida Silvestre Isla San Lucas, con ello se modificar apenas un 5.5% del área actual para la protección del patrimonio cultural allí existente y el desarrollo turístico sostenible limitado y acorde con las reglas ambientales que dicta la legislación. De esta manera se conserva el 94.5% del área total para la protección de la vida silvestre.

• Se amplía los límites del Refugio para incluir los islotes cercanos a la Isla San Lucas, que tienen una importante biodiversidad que demanda ser protegida, pero que fueron excluidos al momento de constituirse el Refugio. Con lo anterior, se amplía el área del refugio en 210,17 hectáreas, que incluyen porciones de agua y los islotes, lugares importantes para la anidación de aves propias de la zona.

• Créase una Comisión Permanente conformada por los Ministros Rectores de Cultura, Juventud y Deportes, Turismo y Ambiente y Energía, o sus representantes y por el Alcalde de Puntarenas o su representante, encargada de velar por el manejo racional de los terrenos de administración municipal. Se contempla que la Comisión tendrá una Secretaría General de Coordinación cuyo titular será designado por el Presidente de la República.

• Se establecen prohibiciones en en el Área de Administración Municipal, como la caza, el abastecimiento de combustibles para evitar la contaminación ambiental, el uso de agua para actividades turísticas que vayan en contra de la preservación del caudal ecológico para el mantenimiento del ecosistema de la isla, entre otros.

Sobre este decreto pesan dos consideraciones que resultan fundamentales en la justificación de la necesidad de establecer una nueva normativa que brinde herramientas reales y prácticas para facilitar el desarrollo de la Isla San Lucas:

La primera se origina en la indisposición que este decreto generó en algunos grupos, que les llevó a presentar una acción de inconstitucionalidad. La Sala Constitucional en su sentencia 13099 del 4 de agosto del 2010, indicó que a pesarde existir un claro interés ambiental en mantener la protección formal de las Áreas Silvestres Protegidas, la reducción del área del Refugio que se pretendía destinar al desarrollo turístico sostenible limitado, solo se puede variar mediante Ley.

“La superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquier sea su categoría de manejo, sólo podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida” (sentencia 13099-2010).

De ahí que el Poder Ejecutivo no puede reducir éstas áreas sin observar el procedimiento legislativo, razón por la cual, la Sala declara parcialmente con lugar la demanda para anular el artículo 1° únicamente en cuanto excluye del área protegida del Refugio Nacional de Vida Silvestre Isla San Lucas, el “5.5% del área actual para la protección del patrimonio cultural”, lo anterior por infracción a lo dispuesto por los artículos 11, 50 y 89 constitucionales, y no en cuanto a la adición del sector marino e islotes, toda vez que ello es permitido al Poder Ejecutivo acordarlo mediante Decreto Ejecutivo.

Para dictar esta sentencia los miembros del Tribunal Constitucional realizaron un reconocimiento judicial el 4 de junio de 2010, mediante el cual se constató “la visible falta de mantenimiento de los edificios ubicados en la Isla San Lucas por el paso de los lustros y la necesidad de tomar acciones para detener el deterioro avanzado que ha sufrido la infraestructura que ahí existe (y las estructuras en madera que existieron en el lugar), y la imperiosa necesidad de detener su inminente desaparición”.

Además, indica la Sala que “un tipo de turismo rural de bajo impacto ecológico respetuoso de la normativa ambiental, resulta compatible con el Derecho de la Constitución, contentiva de las obligaciones internacionales ampliamente desarrolladas en los precedentes de la Sala (a las que remite esta Sala), y con el artículo 89 de la Constitución Política al fijar los objetivos culturales, entre ellos: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico, y cuyo valor se potencia en el acceso que pueda tener de él la población. Por ello, no se demuestran incompatibilidades entre la protección al ambiente y la conservación de bienes culturales puestos a disposición de la humanidad, con un proyecto que debe desarrollarse integralmente con el ambiente, que debe ser comprensivo de todos sus componentes, no excluyente”.

Finalmente, es menester indicar que la sentencia mantiene sin variaciones el establecimiento de la Comisión Permanente de administración y desarrollo de la Isla San Lucas.

El segundo aspecto, es que esta Comisión solo funcionó en sus primeros años. Desde el 2014 hasta el 2017, ni siquiera fueron nombrados sus integrantes, lo cual sin lugar a dudas, evidencia que a pesar de los esfuerzos anteriores mediante la emisión de los decretos ejecutivos, hubo omisión en el cuido y resguardo de la isla.

La situación de la Isla En los últimos años han ocurrido una serie de actos vandálicos que han socavado de manera importante la historia que ella encierra San Lucas. En Agosto de 2017 ocurrió un violento asalto contra dos guardaparques del Sistema Nacional de Áreas de Conservación (SINAC), lo cual llevó a la entidad a reducir la vigilancia en la isla San Lucas, desde entonces los personeros del Sistema visitan el lugar solo tres días a la semana, duermen en tiendas de acampar y transportan el agua en bidones desde Puntarenas.

En el asalto, robaron armas de los guardaparques, los electrodomésticos de la cabaña que estos habitaban, así como dinero en efectivo que correspondía a lo recaudado por visitación turística. También afectaron la infraestructura "al punto que esta quedó inservible".

Por otra parte, en noviembre de 2017, durante la noche, desconocidos ingresaron a la Isla y provocaron un incendio en un edificio de tres pisos, construido en 1930, donde funcionó la comandancia y la parte administrativa del antiguo centro penal. El fuego consumió cerca de 265 m2 del patrimonio arquitectónico.

Los delincuentes se llevaron parte del techo de la casa que habitaban los guardaparques, sustrajeron las puertas de la capilla que había restaurado el Centro de Patrimonio en el año 2014; se llevaron los horcones del dispensario, arrancaron rótulos y causaron daños generales.

Debido a este incendio, el Centro de Patrimonio confesó que el inmueble no contaba con un proyecto sostenible que garantizara los servicios públicos, debido, principalmente, a la falta de disponibilidad de agua. Lo anterior, aunado a la falta de electricidad, lo cual motivó a que la comandancia no fuese ocupada, provocando deterioro en la infraestructura pues los indigentes lo toman como refugio.

Los actos vandálicos que ha dado en los últimos años y la falta de agua potable, producto del daño que posee el pozo, provocan que la isla sea un sitio muy vulnerable, con cada daño que se le realiza al lugar se va desmantelando la historia que se ha pretendido conservar.

Es por ello que existe la firme convicción de buscarle una solución a la problemática de la Isla, de manera tal que se le brinde un manejo adecuado e integral, el cual permita la investigación, la recreación, el aprovechamiento de los recursos naturales, tales como: playas, senderos, flora y fauna del bosque tropical seco, la diversidad de aves, mamíferos, y el disfrute de la amplia belleza escénicaque posee el lugar; los cuales, en conjunto con una adecuada preservación del patrimonio, pueden representar una fuente de atractivos para el desarrollo ecoturístico del Golfo de Nicoya e impactar positivamente en la provincia de Puntarenas.

Debido a lo mencionado anteriormente, con la certeza de que los decretos ejecutivos emitidos establecieron un primer paso para la protección de este territorio y que en la actualidad se ha constatado que esa categoría jurídica resulta insuficiente para brindar un mejor tratamiento del lugar; y en aras de otorgar un mayor resguardo de la historia y la cultura que alberga la Isla San Lucas, proteger y conservar los recursos biológicos, se propone crear el Parque Nacional Isla San Lucas y otorgarle la declaratoria mediante ley de Patrimonio histórico. Además, el conjunto de edificaciones del antiguo Presidio, tendrán la categoría de Patrimonio histórico arquitectónico.

La iniciativa plantea la segmentación de la Isla, de manera que se identifiquen las áreas fundamentales de preservación y de utilización turística, con un desarrollo ordenado. El objetivo es que las familias disfruten de un “paseo completo” que conllevará la visita al centro histórico cultural, la utilización del espacio natural (como la ruta de desplazamiento o senderos adicionales), y finalmente, el espacio de playa. Adicionalmente, el Parque Nacional Isla San Lucas, pretende ser un complemento de visita a las otras Islas del Golfo.

Esto resulta consonante con lo expresado por la Sala Constitucional:

«[…] la Sala debe analizar el caso concreto, dado que ambos derechos, ambiental natural y ambiental urbano deben equilibrarse cuando el Patrimonio Cultural se encuentra presente, dado que se trata también de valores constitucionales que no pueden ser legítimamente excluidos, de los derechos de acceso y de disfrute de todos los particulares, nacionales y extranjeros, lo que se conoce como su puesta en valor» (voto 13099-2010).

En lo que respecta a la zona marina, tanto la Playa Cocos y las zonas aledañas tienen potencial para realizar actividades turísticas de sol y arena, así como observación de vida marina controlada por medio de equipo básico (snorkelin), esto debido a la abundancia de especies observadas. El informe también indica que “el uso controlado y de bajo impacto es compatible con la sostenibilidad de los procesos ecológicos que puedan existir en la zona”.

Según lo anterior, la Isla combina dos tipos de atractivos histórico-culturales, y naturales, que no han sido puestos en valor pero poseen las características necesarias para convertirse en una fuente de atracción de visitantes nacionales y extranjeros que beneficien no solo la Isla, sino al resto de islas del Golfo de Nicoya.

En la parte histórico cultural, el funcionamiento hasta 1991 del presidio marca un hito en la historia del país. Este es, sin lugar a dudas, el principal atractivo. Las estructuras y el conjunto arquitectónico que todavía está en pié ofrecen la posibilidad de rescatar elementos sustanciales del pasado histórico costarricense.

Los atractivos naturales están integrados principalmente por las asociaciones vegetales y la fauna asociada descritas anteriormente en este documento. El desarrollo de senderos y actividades de recreación, disfrute y educación ambiental serían los medios por excelencia para poner este tipo de valores culturales al servicio de las familias.

Para lograr los cometidos descritos, se propone la creación de una Junta Administradora, integrada por cinco actores principales que harán un balance entre la preservación, la conservación y el desarrollo de bajo impacto que se requiere para poder tener las condiciones necesarias de disfrute. Además, resulta fundamental que esta Junta pueda tener capacidad de acción, de forma que lo dispuesto en la presente propuesta sea realizable en todos sus extremos.

Por las razones expuestas y con el propósito impactar positivamente el desarrollo de la Isla San Lucas y de la provincia de Puntarenas, someto a conocimiento de las señoras diputadas y los señores diputados, el presente proyecto de ley.” Revisado el expediente legislativo en cuestión, también se pudo evidenciar lo señalado por el MINAE en la contestación de la audiencia rendida ante la Asamblea Legislativa a folio 272 del expediente legislativo nro. 21.287, en el siguiente sentido:

“…Valoramos el rescate y el interés por la zona y estamos seguros de que con esta iniciativa se le dará un mejor mantenimiento a las instalaciones y a la construcción más reciente; así como a la limpieza de senderos y de playas en la isla que logre rescatar y enseñar su valor histórico único en el país…Sobre el trabajo articulado en la isla, debemos mencionar que se han sostenido reuniones con las personas proponentes del Proyecto de Ley, pero es necesaria una vinculación con diferentes instituciones que busquen la buena gestión de este posible Parque Nacional, tales como: el Instituto Costarricense de Electricidad, el AyA, el Ministerio de Turismo, el personal de Guardacostas y la Fuerza Pública, el Ministerio de Cultura y Juventud, incluido el Museo Nacional, así como un equipo del SINAC-MINAE que apoye en el proceso. De aprobarse este proyecto de ley será indispensable la adecuada dotación de agua, las telecomunicaciones, la electricidad y la seguridad, básicas para poder pensar en desarrollar el Área Silvestre Protegida desde el punto de vista turístico previsto.

La propuesta podría valorar el fortalecimiento operativo del Refugio Nacional de Vida Silvestre Isla San Lucas (RNVSISL), si lo tienen a bien los señores y señoras diputadas. Esto permitiría posicionarle como un área Silvestre Protegida (ASP) única que combine el recurso natural y cultural, y generarle un mecanismo financiero con el objetivo de garantizarle una adecuada gestión, especialmente en cuanto a adoptar e implementar medidas para combatir el cambio climático, por su carácter insular y para el mantenimiento de la infraestructura histórica: que posea, además, un mecanismo de coordinación interinstitucional, y que apoye la generación del desarrollo socio económico en la zona de influencia, que carece de fuentes de trabajo y encadene la economía de las demás islas. En el artículo 6 se propone que toda zonificación de ASP sea resultado del análisis técnico del Plan General de Manejo, que consiste en un instrumento de planificación que permite orientar la gestión del ASP hacia el cumplimiento de sus objetivos.

Sugerimos que la definición de la zona turística sea el resultado de lo que arrojen los estudios técnicos del Plan General de Manejo posterior. En el artículo 7 sobre la creación de la Junta Directiva del Parque Nacional Isla San Lucas, se recomienda que sea un órgano de desconcentración máxima adscrito al Ministerio de Ambiente y Energía y con personalidad jurídica instrumental para el ejercicio de sus competencias. Así como que los puestos sean en propiedad y que sea presidido por el MINAE. Recomendamos además que sean personas con un perfil idóneo, técnico y especializado, acompañados por una persona como Gerente Ejecutiva de la Junta, que apoye a la gestión de la administración en las labores especializadas como la conservación y restauración del patrimonio cultural de la isla…En el artículo 18 se sugiere cambiar en el título la palabra “seguridad” por “Dotación de personal” para aprovechar otro tipo de personal de apoyo para actividades tales como turismo sostenible, educación ambiental, mantenimiento, entre otros…Quedamos en la mejor disposición de sostener reuniones y sesiones de trabajo en conjunto, para fortalecer la propuesta de proyecto de ley en aras de buscar una iniciativa que permita garantizar la conservación de los ecosistemas de la Isla San Lucas y a la vez convertirla en un eje de desarrollo socioeconómico para Puntarenas y el Golfo de Nicoya.” Lo sostenido en el Dictamen Unánime Afirmativo rendido por la Comisión Permanente Especial de Turismo de la Asamblea Legislativa que conoció el proyecto de ley nro. 21.287, que dio origen a la ley cuestionada, reafirma lo sugerido y trabajado, al señalar, en lo que interesa, lo siguiente:

“El Instituto Costarricense de Puertos del Pacífico (Incop), el Instituto Costarricense de Turismo (ICT), el Instituto Geográfico Nacional (IGN), el Instituto Costarricense de Acueductos y Alcantarillados (AyA) y la Comisión Nacional de Patrimonio Histórico y Arquitectónico, fueron las instituciones que apoyaron el proyecto con criterios y sugerencias de mejoras que fueron de gran ayuda para plantear cambios que permitan un contenido preciso en el articulado.

Adicionalmente, tomando en cuenta las observaciones del IGN se realizó una mesa de trabajo para trasladar las coordenadas geográficas, pues las indicaciones correspondían a una nomenclatura que se encuentra en proceso de desuso. Con este aporte se garantiza mayor exactitud y se actualiza la información.

Por otra parte, se estableció una mesa de trabajo en la que participaron algunos de los proponentes, el Minae, el ICT, el Ministerio de Cultura y la oficina de la Primera Dama, este último como mediador del Poder Ejecutivo, para que las partes pudieran establecer acuerdos que faciliten la definición del funcionamiento del Parque Nacional Isla San Lucas, pues lo propuesto en el proyecto requiere de una visión de futuro al plantear una nueva modalidad de administración. Finalmente, el proceso de consulta concluyó con el aporte de varios expertos en la materia, quienes también realizaron diversas sugerencias que han sido tomadas en cuenta para enriquecer el texto con posibles modificaciones.” Durante la discusión en primer debate, legisladores promoventes del proyecto legislativo que dio origen a la ley aquí en cuestión, tal como el ex diputado Benavides, ante la preocupación de algunos legisladores respecto de crear un parque nacional con el ya poco presupuesto con el que cuenta SINAC, les indicó lo siguiente (págs. 55 a 65 del acta de la sesión extraordinaria de la Asamblea Legislativa nro. 37 de 10 de agosto de 2020):

“…y para que no se preocupen por los recursos del Minaet ya de por sí está en manos del Minaet y de sus guardaparques desde el 2011, así que ningún esfuerzo extraordinario tendrá que hacer una vez que convirtamos esa isla en Parque Nacional y la vamos a convertir en parque nacional por ley, cómo también se convirtieron por ley otros parques nacionales que no pasaron por los procedimientos administrativos a los que se hizo referencia con anterioridad y así se creó el Parque Nacional Barra Honda y así se creó el Parque Nacional Isla del Caño, y así se creó el Parque Nacional Braulio Carrillo, porque esta misma Asamblea Legislativa quiso hacer un Parque Nacional, especialmente en un territorio como San Lucas, que ya de por sí es refugio de vida silvestre. Así que no existe ningún tipo de incoherencia ni existe ningún tipo de desafío en materia técnica o ambiental para darle condición de parque nacional a un territorio que desde el 2001 es refugio de vida silvestre.

Pero aquí viene la parte quizás que impulsa las acciones que se han tomado a partir de la presentación de este proyecto de ley. Y es justamente el hecho de que la isla, aunque fue declarada refugio de vida silvestre, realmente su gestión, su administración no procuró la protección de los bienes patrimoniales históricos. A pesar de que desde el 2002 se declaró como patrimonio histórico el conjunto de edificaciones que fueron parte de la cárcel, no hubo ningún tipo de protección.

Y es que además es evidente que ni el Minae, y particularmente el Sistema Nacional de Áreas de Conservación no tenía por lo menos en aquel momento ni la especialización técnica ni los recursos para proteger los edificios patrimoniales, tampoco los bienes arqueológicos, y mucho menos dotar a la isla de San Lucas de servicios básicos, ni siquiera servicios sanitarios.

Es decir, hoy, hoy, tantos años después de ser refugio de vida silvestre, de existir una declaratoria de patrimonio histórico de los bienes, no hay ahí para quienes visitan el parque ni un servicio sanitario. Esa es la realidad.

Y bueno, justamente esa realidad tratamos de cambiarla. En el año 2008, a través de un decreto ejecutivo, un decreto ejecutivo que yo tuve el honor de redactar originalmente, acompañado de los ministros de Cultura de aquella época y de Medio Ambiente, pero especialmente respaldado por el señor presidente Óscar Arias Sánchez, quien creyó en este proyecto como una forma de combinar la protección de la naturaleza, la conservación y restauración de nuestros edificios arquitectónicos, de nuestro patrimonio arquitectónico, y el desarrollo de turismo sostenible, de bajo impacto, como el que hemos podido realizar en los parques nacionales. Pero no en manos exclusivamente de quienes en aquel momento lo administraban sin éxito para los efectos de la protección.

Y entonces se conformó por decreto una junta directiva que incluyera al Ministerio de Ambiente, al Ministerio de Cultura, pero también al Ministerio de Turismo, a la alcaldía local y a otro representante del Poder Ejecutivo, para que pudieran llevar a cabo esas labores distintas.

Cometimos un error que fue reducir el tamaño del área de la reserva. Ahora lo veo así, porque lo que intentábamos era poder administrar ese espacio en particular y que el resto fuera refugio de vida silvestre. Pero el objetivo era claro y era acertado; era darle las condiciones administrativas financieras para que no siguiera ocurriendo lo que ocurría hasta el año 2008. En manos exclusivamente del Sinac, perdimos la antigua biblioteca de la isla, se perdió una escuela, todos edificios patrimoniales. Se perdió el comisariato y se perdió el barrio entero que le llamaban de Las Jachas, que eran las casas que en la colonia penal, agrícola penal, ocupaban los privados de libertad durante algunos lapsos. Se perdió gran parte del patrimonio y, por eso, en el 2008 nos dedicamos a rescatarlo a través de ese decreto ejecutivo que firmamos con don Óscar Arias a la cabeza.

Varios ciudadanos y ciudadanas interpusieron, en su derecho, acciones de inconstitucionalidad que fueron resueltas en el 2010. La Sala Cuarta, en aquel momento, declaró en dos resoluciones que efectivamente el refugio de vida silvestre no se había reducido de conformidad con la Constitución Política, que un área de vida silvestre protegida no se puede reducir por decreto, solo por ley, y así lo acatamos. Pero sostuvo el resto del articulado del decreto, para que la administración siguiera siendo conjunta con ICT, con Cultura, con Ambiente, con el poder local.

Y voy a leer brevemente un pasaje de aquella resolución del año 2010, confiando en que más adelante algún compañero me dará un poquito de su tiempo para seguir desarrollando estos argumentos.

Dijo la Sala: Como se indicó en el criterio de la Sala, el Poder Ejecutivo está posibilitado para dictar nuevas normas para garantizar otros derechos relevantes para la comunidad nacional e internacional, en coordinación incluso con entes menores, como las corporaciones municipales.

Por el contrario, si la Sala sostiene que predomina una única competencia administrativa sobre todas las demás, como indirectamente se pide en la acción de inconstitucionalidad, la solución sería un contrasentido con perjuicio a otros derechos humanos en las obligaciones internacionales suscritas por nuestro país previamente regulados como la puesta en valor de los monumentos de valor histórico protegidos, como también para su desafectación.

Un tipo de turismo rural de bajo impacto ecológico, respetuoso de la normativa ambiental, resulta compatible con el derecho de la Constitución contentiva de las obligaciones internacionales ampliamente desarrolladas en los precedentes de la Sala, a las que obligaciones internacionales y el artículo 89 de la Constitución Política al fijar los objetivos culturales, entre ellos proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y cuyo valor se potencia en el acceso que pueda tener de él la población.

Por ello no se demuestran incompatibilidades entre la protección al ambiente y la conservación de bienes culturales, puestos a disposición de la humanidad con un proyecto que debe desarrollarse integralmente con el ambiente.

Cabe recordar del escrito de coadyuvancia del presidente ejecutivo del Instituto Costarricense de Turismo, donde precisamente coloca entre los propósitos la puesta en valor como un aspecto necesario de acceso a las manifestaciones humanas en la isla” (cierro comillas).

La Sala Constitucional lo que hizo fue equiparar de manera definitiva principios constitucionales que son equivalentes con respecto a la protección ambiental y a la protección del patrimonio histórico y al derecho de las y los costarricenses de visitar libremente de apreciar la naturaleza de su territorio, pero también de sus bienes patrimoniales y disfrutar sanamente y sacar provecho económico para que las familias costarricenses puedan vivir mejor, como se trata justamente con el turismo.

Y esa sentencia del año 2010 fue clave para que la isla se empezara a reconstruir en su patrimonio y lentamente a mejor el desempeño en términos de gestión y administración, como voy a decirlo en la segunda parte de mi intervención…” “…Y agradezco a mi colega y coterránea diputada Chan Mora, por el apoyo que ha expresado de parte de ella y de sus compañeros a este proyecto de ley.

Continúo diciendo que, una vez que se aclararon aquellos nublados en el año 2010 con la resolución de la Sala Constitucional, nos pusimos a trabajar duro en ver cómo podíamos conseguir los recursos para recuperar los edificios históricos o por lo menos una buena parte de ellos, siendo que el desarrollo de actividades de conservación o de restauración en la isla son sumamente complejas.

Imagínense lo que es tener que ir a hacer arreglos a una isla en donde no te podés hospedar, donde no hay agua en abundancia, particularmente no la hay potable, y en donde además tampoco había electricidad.

Ir a realizar trabajos, obra civil, no es sencillo, pero lo logramos con una inversión de casi doscientos…, no, en este caso de casi ciento diez millones de colones, el Ministerio de Cultura realizó la restauración de la comisaría, del edificio principal en el año 2011.

Allá fuimos a realizar la inauguración de esa obra portentosa, lo recuperó todo, desde las oficinas hasta los baños, los salones de reunión, los lugares en donde la persona que presidía el centro penal, que dirigía el centro penal en los años en que existió, tenía sus oficinas, un edificio de tres pisos que fue restaurado en su totalidad en el año 2011. Fuimos con el entonces ministro don Manuel Obregón.

Como en el 2008, luego de firmar el decreto ejecutivo con el presidente Óscar Arias habíamos hecho una visita, en la cual nos acompañó don José León Sánchez, que ojalá esté escuchando esta sesión el día de hoy.

Porque don José León también ha creído en este proyecto para volver a recuperar históricamente esa isla, a la par de su condición ahora de parque nacional, que también dedicará sus esfuerzos a la conservación del patrimonio ambiental.

Y fue luego en el 2013 que iniciamos la licitación contando con el respaldo económico del Instituto Costarricense de Turismo y del Instituto Costarricense de Puertos del Pacífico, y se invirtieron casi doscientos millones de colones para recuperar la antigua capilla.

Una capilla realmente maravillosa que estaba despedazada, ni las puertas habían quedado durante aquella época en donde no se le dio ningún seguimiento a la protección del patrimonio histórico. Fue así como en el 2014 se logró inaugurar la capilla.

Lamentablemente en los años posteriores, la isla se vio con gran desdén. El Ministerio del Ambiente fue, digamos, teniendo menos personal para la protección de la isla, hasta que en el año 2017 unos vándalos entraron a la isla como Pedro por su casa, como usualmente entraban, y le prendieron fuego a la comisaría en la que se habían invertido casi doscientos millones de colones.

Y no quedó nada. Bueno, queda ahí la estructura un poco ya quemada, pero se perdió aquella inversión, por estar justamente en un estado de mala administración.

Y tengo que decir que así estuvo esa isla del 2014 al 2018 en un estado de abandono a pesar del Decreto Ejecutivo del 2008. Tanto así que desde el 2014 al 2015 o 16, ni siquiera se conformó el órgano de junta administradora de esa isla, tal fue el descuido. Hasta que la cereza en el pastel fue que en el 2017 le prendieron fuego a la comisaría.

Afortunadamente, en esta Administración ha sido diferente, ha habido una coordinación de instituciones, con base en el decreto que firmamos el Gobierno de don Óscar en el 2008 y con la coordinación de la señora primera dama se han empezado a desarrollar múltiples obras: el desarrollo de baterías de servicios sanitarios que pronto serán inauguradas, la mejora de la casa de los guardaparques, el acceso a energía solar, la recuperación otra vez, intentando nuevamente reconstruir la comisaría y también el dispensario médico, un edificio que estaba por caerse.

De manera que este proyecto de ley —y ya para aterrizar aquí en lo que quiero terminar diciendo— este proyecto de ley va a generar efectivamente una administración diferente de un parque nacional.

Va a ser una administración diferente, porque también va a ser conjunta, va a estar ahí presente, representado el Ministerio del Ambiente, el Ministerio de Cultura, el de Turismo, la alcaldía y una representación local, más otro representante del Poder Ejecutivo.

Podrán, además, someter a fideicomiso con un banco del Estado la gestión administrativa y financiera de este nuevo parque nacional. La visión, efectivamente, es distinta, va a ser un parque nacional en donde habrá de protegerse el ambiente, en donde habrá de protegerse el recurso natural.

Pero no vamos a dejar en segundo ni tercer lugar a la protección del patrimonio histórico que les pertenece a nuestros hijos; un patrimonio histórico que no tiene por qué perderse ni dejar que lo quemen, ni dejar que se deteriore todos los días, como lamentablemente perdimos varios edificios patrimoniales por puro abandono.

Pero, además, va a ser un régimen distinto de administración para permitir que se desarrolle turismo sostenible, que podamos tener muelles decentes para que los turistas puedan llegar en condiciones de primera calidad a atracar y bajarse a esa isla, para que puedan disfrutar de los senderos, para que puedan acceder a algunas de sus playas, para que tengan dónde comer o beber durante su estancia en esa isla, para que pueda haber turismo de primera calidad y no de segunda, como lamentablemente tienen que padecer muchos turistas cuando van a algunos de nuestros parques nacionales, porque los hemos condenado a andar en pésimas condiciones, sin darles lo que tenemos que darles, porque además no hemos introducido variables administrativas que garanticen un criterio técnico en lo turístico.

Nos hemos dedicado exclusivamente a que sean espacios de preservación ambiental. Y quiero decirles que esa no fue la intención del padre político de los parques nacionales, que fue Daniel Oduber Quirós.

Cuando don Daniel impulsó los parques nacionales, estaba pensando también en el desarrollo de nuestras comunidades aledañas a los parques, a través del desarrollo turístico. Y esa herencia no la hemos defendido adecuadamente, porque hemos permitido que en los parques nacionales no existan las condiciones adecuadas para que haya turismo efectivo y para que permee económicamente en nuestras comunidades rurales.

Sí, este es un cambio de modelo gerencial, administrativo y financiero de un parque nacional, y eso debo de aceptarlo. Y va a ser un parque nacional, repito, respetuoso de las condiciones naturales y de preservación.

Vamos a tener ahí a nuestros guardaparques del Ministerio del Ambiente, la administración va a estar dentro de un órgano desconcentrado del Ministerio del Ambiente.

El ministro o ministra del Ambiente tendrá voto preferencial o doble voto dentro de la Junta Directiva, como lo establece la Ley General de la Administración Pública. Pero vamos a tener dentro de esta lógica, dentro de este marco, el desarrollo turístico sostenible como un objetivo fundamental del Parque Nacional Isla San Lucas, para que las y los puntarenenses, para que las y los habitantes de las islas, para que las y los habitantes de la costa, de la península de Nicoya, de Paquera, de Cóbano, de Lepanto, de la zona costera, del cantón Central, para que los vecinos de Manzanillo, Costa de Pájaros, para que permee hasta Garabito, para que las personas del mar puedan incluso reconvertir sus flotas, y tenga propósito y tenga sentido económico llevar turismo al nuevo Parque Nacional de Isla San Lucas.

Y queremos convertirlo en lo que significa Alcatraz para San Francisco en California en Estados Unidos. Ellos reciben más de un millón de visitantes al año. Quizás San Lucas no podrá, por condiciones de capacidad de carga, pero podemos producir muchísimo turismo, muchísimo, en una receta diferente, en donde la naturaleza no es solo para verla de largo, sino que también es, con respeto a ella, para que los seres humanos podamos aprovecharla y podamos darle de comer a nuestra gente, a nuestras familias, darle sentido a la naturaleza.

Es un paraje bellísimo y los invito a ir a San Lucas. A veinte minutos del puerto de Puntarenas, una isla llena de naturaleza, cuatrocientas sesenta y dos hectáreas, con un antiguo centro penal, con secretos de la historia, donde estuvo Beltrán Cortés y donde estuvo don José León Sánchez presos, para que vayan a descubrir el disco donde los metían a los presos cuando los querían castigar y salían ahí medio muertos de estar días deshidratados.

Para que conozcan la playa El Coco, que es la playa más grande que tiene San Lucas, y para que puedan adentrarse en sus senderos y llegar a conocer las islas, las playas del Inglés y playa Tumbabote, y para que puedan darse una vuelta alrededor por islotes que tiene la isla, y que puedan descubrir su fauna y que puedan descubrir todas las riquezas naturales que esa isla tiene, para que podamos desarrollar económicamente a una región empobrecida y abandonada en muchos sentidos, como es la región del golfo de Nicoya. Y convertir al golfo de Nicoya en una joya que nos permita realizar comercio, negocios, actividad sosteniblemente, con respeto por la naturaleza, pero con respeto para el ser humano como sumo de esa naturaleza, y eso es lo que pretendemos una nueva gestión, una gestión ágil, una gestión que contará con el apoyo de ese fideicomiso que se señala ahí, que será vigilado celosamente por la Contraloría General de la República pero qué se le otorgará a un banco del Estado costarricense.

Y, entonces, podremos intentar las y los costarricenses evitar capítulos tristes e incluso vergonzoso que hemos tenido que vivir en otros parques nacionales en donde no se ha cuidado la atención al turista en donde no hay infraestructura adecuada.

Y en esta isla sí habrá concesión, se permitirá el servicio por parte de terceros de personas particulares incentivaremos que en esa distribución de concesiones y permisos se fomente la participación de las asociaciones locales para que también tengan posibilidades, pero las posibilidades serán inmensas dentro y fuera del parque, como ustedes lo conocen en el texto se prohíbe la hotelería, se prohiben los juegos de azar dentro del parque, será para visitas de un solo día para que ojalá pernocten, para que ojalá se queden a dormir en las cabinas y los hoteles allá en el puerto, o en Jacó, o en Lepanto, o en Cóbano, o en Paquera o en cualquiera de las otras comunidades desde donde será fácil conectar por vía marítima a nuestra isla de San Lucas.

Hoy nace un Parque Nacional un nuevo Parque Nacional con una administración distinta que contempla ambiente, patrimonio arquitectónico, histórico y contempla también desarrollo sostenible…” (El resaltado no es del original).

De interés, en relación con la ampliación de la protección que implica esta ley, resulta preciso citar la intervención del diputado Villalta Flórez-Estrada en ese primer debate a páginas 71-76, al señalar lo siguiente:

“Diputado José María Villalta Flórez-Estrada:

Gracias, señor presidente, señoras diputadas, señores diputados.

Discutimos el día de hoy este proyecto de ley para crear un nuevo parque nacional en nuestro país.

Yo debo confesar en primer lugar, y viendo algunas posturas en esta Asamblea Legislativa, pensé que no asistiría en estos cuatro años a la creación de un parque nacional.

Pensé que era probable que discutamos en este Plenario proyectos para eliminar o reducir áreas silvestres protegidas y parques nacionales, pero vean cómo son los que son las cosas, estamos discutiendo con buenas probabilidades de ser votado, un proyecto para crear un nuevo parque nacional.

Y eso es importante, los parques nacionales, según los tratados internacionales, que el país ha firmado, como, por ejemplo, el Convenio para la protección de las bellezas nacionales de los países de América Central, el Convenio de diversidad biológica, y también según nuestra legislación los parques nacionales son áreas de protección absoluta, son las áreas protegidas con mayor categoría de protección.

Se declara parque nacional un área que se quiere…, un área natural que se quiere proteger, que se quiere conservar, y donde la riqueza, la particularidad de los recursos naturales, de los ecosistemas, de las especies de flora y fauna que allí se encuentran, es tal, es tan importante que se considera darle una protección especial.

En nuestro sistema de áreas silvestres protegidas existen distintas categorías de manejo.

El parque nacional es la categoría de mayor protección, que se reserva para áreas que tienen bellezas naturales únicas, donde hay ecosistemas en peligro de extinción, o ecosistemas altamente amenazados, donde hay recursos únicos valiosos que es indispensable proteger de forma especial.

Por supuesto que la isla San Lucas cumple, de forma genérica, o al menos de forma general, lo planteo aquí cumple esos parámetros, es un ecosistema endémico por ser una isla, es una isla con una gran belleza nacional que ciertamente fue intervenida en el pasado, pero que hoy se ha reforestado de forma maravillosa donde hay especies únicas.

Pero, además, es cierto San Lucas reúne esa conjunción entre el patrimonio biológico y el patrimonio cultural, no solo…, y arqueológico, no solo es una belleza natural, es además un elemento central del patrimonio histórico, arquitectónico de nuestro país, ese antiguo penal y toda la historia relacionada con el antiguo penal, es además un sitio arqueológico que requiere una mayor protección y una mayor investigación.

Y es un lugar, una isla, un lugar privilegiado en ese golfo de Nicoya que, efectivamente, tiene un gran potencial para el desarrollo turístico sostenido, se dan esos tres factores que concluyen en la isla.

Y bien, ¿qué categoría de manejo tiene hoy San Lucas? Efectivamente, San Lucas es hoy un refugio de vida silvestre, de propiedad pública, un refugio de vida silvestre público y es también una isla; por lo tanto, hoy San Lucas está protegido como parte del patrimonio natural del Estado, pero no tiene la categoría de manejo de parque nacional.

Esos bosques, esas riquezas naturales, esas bellezas hoy tienen una categoría de menor protección. Ya hoy estábamos bajo administración del Sistema Nacional de Áreas de Conservación y es un área silvestre protegida, salvo la parte del patrimonio arquitectónico histórico, donde prevalece o debería prevalecer la intervención del Centro de Patrimonio del Ministerio de Cultura, pero ciertamente no ha funcionado bien.

No hemos logrado un sistema de coordinación donde el Minae, por la parte del área silvestre protegida, el Centro de Patrimonio del Ministerio de Cultura por la parte de la protección del patrimonio histórico cultural arquitectónico, coordinen esfuerzos para conservar eso. Y ciertamente el patrimonio histórico arquitectónico se ha deteriorado.

Pero bueno, esto es lo primero que me gustaría reseñar. Con este proyecto de ley se está aumentando la categoría de protección del área silvestre protegida que hoy está bajo administración del Minae, va a seguir estando bajo administración del Minae, como una figura de Junta Directiva como órgano desconcentrado, similar a la que existe en otras áreas protegidas, aunque con algunas diferencias, pero va a seguir siendo un área silvestre protegida si esta ley se aprueba, pero con una mayor categoría de protección.

De mi parte, nunca aprobaría un proyecto de ley que modifique la categoría de protección de un área silvestre protegida, para reducir esa categoría de protección, sin todos los estudios técnicos que establece el artículo 32 de la Ley Orgánica del Ambiente.

Cualquier modificación que implique una mayor intervención o una reducción de la categoría de manejo tiene efectivamente que cumplir con todos esos estudios.

En este caso, lo diferente es que estamos aprobando una ley que implicaría aumentar esa categoría de protección, y eso es importante tenerlo claro. La isla, la parte terrestre hoy de la isla, del Refugio de Vida Silvestre de San Lucas son cuatrocientas sesenta y dos hectáreas; cuatrocientas sesenta y dos hectáreas que están bajo la categoría de refugio de vida silvestre.

Con esta ley esas cuarenta y dos hectáreas (sic) pasarían a ser parque nacional. De ese porcentaje, hay un cinco punto cinco por ciento del territorio de la isla, alrededor de un cinco por ciento de territorio de la isla, que se declara zona turística en esta ley. Pero eso ya fue declarado en el decreto ejecutivo que ahora mencionaba el diputado Benavides Jiménez, el Decreto Ejecutivo 34.282, del año 2008.

Esa parte que es zona turística va a tener una forma diferenciada de manejo, una forma diferenciada de manejo compatible con el área silvestre protegida y compatible con el turismo sostenible, para atraer la visitación a la isla.

Pero toda la isla va a ser parque nacional y eso es importante. Si leemos, si leemos el artículo 3, por ejemplo, que habla de la delimitación del área silvestre protegida, dice el artículo 3 de este proyecto de ley, párrafo final: Inserta dentro de las dos áreas anteriores, el área marítima y la porción terrestre de la isla, inserta dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible.

Entonces, la zona turística que se reconoce forma también parte del parque nacional y esto es importante. En alguna versión anterior de este proyecto de ley, existía la duda o no existía total claridad de si la legislación ambiental que rige las áreas silvestres protegidas iba a aplicarse sobre las zona turística, que tendrá un manejo diferenciado, pero al ser parte del parque tiene que aplicarse el resto de la legislación ambiental.

Bueno, por dicha, en la conversación y la negociación previa a la votación de este proyecto de ley, llegamos a un acuerdo con el diputado Benavides Jiménez para afinar la redacción del artículo 7, Alcances y restricciones. Este artículo era importante porque es el que delimita y se refiere a la forma en que se va a manejar el parque nacional.

En algún momento, había una norma que parecía insinuar que la legislación ambiental no se aplicará plenamente en el área denominada zona turística, o que buscaba de alguna manera excluir de la aplicación —talvez ese no era el objetivo, pero podía entenderse así— excluir de la aplicación de la ley la Ley de Biodiversidad o la Ley Orgánica del Ambiente u otras leyes fundamentales de la legislación ambiental.

Eso se logró corregir y aclarar. Entonces, vean qué importante, en este parque nacional que se crea lógicamente se va a seguir aplicando la legislación ambiental del país.

Al ser un parque nacional, un área de protección absoluta, en ese parque nacional están prohibidas una serie de actividades, como por ejemplo, la extracción, la explotación de la flora y la fauna, la cacería, la tala, la explotación de los recursos naturales porque se aplica la legislación que rige los parques nacionales, se aplica, por ejemplo, la Ley de Parques Nacionales, la Ley Orgánica del Ambiente, la Ley de Biodiversidad.

Esas leyes también se aplican en la zona turística, que tiene un manejo diferenciado para poder facilitar y permitir el desarrollo de servicios turísticos, pero se aplican estas leyes, por ejemplo, no podría interpretarse que en la zona turística sí está permitida la cacería o otra actividad de explotación de los recursos naturales, que es incompatible con la protección de un parque nacional y creo que esto es importante, miren, San Lucas hoy tiene este territorio de doscientas sesenta y dos hectáreas, donde un cinco por ciento, casi un seis por ciento del territorio está conformada por las edificaciones del antiguo penal, un porcentaje un poquito mayor.

¿Cuánto es el porcentaje ahora, diputado Benavides? No…, cuatrocientos sesenta y dos hectáreas, donde un pequeño porcentaje está conformado por el área del antiguo penal, el área que es patrimonio histórico arquitectónico, los senderos y la parte que va a formar, se va a destinar o que ya, actualmente, se va a destinar a la zona turística, pero el resto, el noventa y cinco y pico por ciento de la isla es hoy terrenos de bosque, donde hay bosque, hay algunas pequeñas partes de bosque primario y sobre todo, bosque secundario en regeneración, un bosque con un gran valor ecológico por ser un ecosistema insular.

Entonces, al declarar con esta ley parque nacional, estamos asegurando la protección de ese noventa y cinco por ciento de la isla que son terrenos de bosque que hoy son refugio de vida silvestre y que buscamos consolidar con una protección más robusta en nuestra legislación ambiental, eso es importante.

Ahora bien, ciertamente, el esquema que se está planteando en esta ley ya fue, de alguna manera, previsto en el decreto treinta y cuatro mil…, a ver, se me fue, 34.282 y al cual le marcó la cancha la Sala Constitucional, yo participé, en esa época era asesor del exdiputado José Merino del Río y participé en la redacción de la acción de inconstitucional contra el decreto de la Administración Arias Sánchez, que reducía el área del refugio de vida silvestre y que en esa parte fue declarada inconstitucional, por la Sala Constitucional, porque era una reducción, vía decreto, sin los estudios.

Pero en ese voto, ciertamente, la Sala Constitucional hizo una ponderación de intereses y una salida salomónica que buscó compaginar los distintos intereses en juego y el voto mantuvo la vigencia de los artículos del decreto que establecen una obligación de coordinación interinstitucional entre la parte ambiental, el Sinac, la parte de preservación del patrimonio, el Ministerio de Cultura y la parte de desarrollo turístico sostenible de la isla, es decir, ya existe un mandato si se quiere, un marco de la cancha que fijó la Sala Constitucional para la gestión de la isla.

En mi opinión, este proyecto de ley lo que hace es, si se quiere consolidar o plasmar en la ley, ese marco que hoy está por decreto, y al cual la Sala Constitucional le marcó la cancha y al menos, para que quede constando, la voluntad o la interpretación de este legislador, yo entiendo y así debe ser, porque la jurisprudencia constitucional es vinculante, yo entiendo que lo que se plantea en esta ley, debe darse en el marco de esa sentencia de la Sala Constitucional, la sentencia 13.099-2010, que claramente marcó la cancha de lo que se puede hacer y lo que no se puede hacer en esa zona turística o esa zona que hoy va a ser parque nacional, pero que va a tener un manejo diferenciado para favorecer el turismo, la Sala fue muy clara, las edificaciones que se podían construir tenían que ser en el marco de la promoción del turismo sostenible, no edificaciones de gran envergadura, nada que dañe, por supuesto, que ponga en peligro ese patrimonio arquitectónico, todo lo contrario, respetando la capacidad de carga de la isla, la visitación tiene que ser respetando la capacidad de carga de la isla, las edificaciones que se construyan serán estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes del desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con la filosofía verde o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual deberá asegurarse de forma sostenible, conforme a la ciencia y a la técnica, incluso, la Sala habla de edificaciones rústicas, edificaciones de bajo impacto.

Entonces, la actividad que se puede hacer en la isla para promover la visitación, en mi opinión, ya está delimitada por esta sentencia de la Sala Constitucional, que además, validó el modelo de coordinación interinstitucional en el cual, hay que decirlo, las autoridades han fracaso porque desde que se dictó esta sentencia en el año 2010, en mi opinión, la coordinación para echar a andar esta gestión de la isla donde hay una situación particular porque coexisten la parte puramente ambiental con la parte de protección del patrimonio arqueológico y la promoción del turismo sostenible al ser un lugar con un gran interés turístico, esa coordinación de las instituciones hasta la fecha no se ha logrado esperamos que con esta ley se logre esa coordinación interinstitucional, porque ciertamente San Lucas tiene un potencial de visitación y de atractivo que si se mantiene en el marco de nuestra legislación se promueve por ejemplo con base en la ley de biodiversidad, los encadenamientos productivos, con organizaciones locales, con las comunidades locales, por esos pueblos pesqueros con esas comunidades que podrían beneficiarse más de la visitación turística de servicios como el cabotaje turístico, el transporte de los turistas la pesca deportiva de pequeña escala si se vincula eso ciertamente San Lucas tiene un gran potencial de desarrollo de toda la región del Golfo de Nicoya, de desarrollo del cantón central de Puntarenas y de promoción del turismo sostenible.

Por eso yo no veo mal que en este proyecto de ley se cree un modelo de administración del parque donde se incorpora también la parte del patrimonio arquitectónico y la parte del turismo sostenible por la naturaleza particular que tiene esta área protegida.” (El resaltado no es del original).

Ese primer debate culminó con 45 votos a favor del proyecto legislativo y uno en contra. Y, en el segundo debate fue aprobado, por unanimidad, de los 39 diputados presentes.

En conclusión, previo a esta ley, la Isla San Lucas, ya había sido declarada Refugio Nacional de Vida Silvestre, propiedad estatal, con una parte de ella declarada, patrimonio arquitectónico histórico nacional, y se había declarado de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla, en los términos acorde con un estudio previo, así como conservar y restaurar las edificaciones del antiguo penal en la Isla San Lucas. También eran permitidas las actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, para lo cual el ICT debía elaborar un Plan Maestro de Desarrollo Turístico Sostenible, que comprendiera un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental.

c- Sobre los fines y administración del Parque Nacional Isla San Lucas.

Es importante advertir que no solo existe un deber de protección ambiental de la zona en cuestión, sino también un deber convencional y constitucional de conservar el patrimonio histórico que ahí se encuentra. Revisado el contexto normativo previo a la ley cuestionada y a la administración técnica bajo el SINAC, que ya ostentaba esta zona, técnicamente se habían expuesto las deficiencias y los usos adecuados que, según las áreas de la zona en la actualización del Plan General de Manejo de la zona eran procedentes. Tales datos estaban en posesión del MINAE de previo a la aprobación de la ley aquí impugnada, así como los usos y áreas individualizadas conforme al conocimiento previo del SINAC. De hecho, así se actualizaron en las mesas de trabajo también las áreas a diferenciar con el IGN, y se mantienen actualmente con la misma o mayor protección y la misma área, por lo que no se considera que exista violación constitucional o convencional ambiental alguna en relación con la ley impugnada. Todo lo contrario, su protección ha sido ampliada y reforzada. Se reitera, el resultado FODA (fortalezas, oportunidades, debilidades y amenazas) realizado por el SINAC que justificaba la actualización del Plan Nacional de Manejo de esta isla de 2012, el cual existía previo a la aprobación de esta ley. Ahí se evidenciaron las necesidades y debilidades de ese lugar:

“2.4.1 Fortalezas - El marco legal del ASP (Decretos Ejecutivos 29277- MINAE del 12 de febrero del 2001, No.30714-C del 26 de Setiembre de 2002, No.34282-TUR-MINAEC del 25 de enero de 2008, No.13099 de agosto del 2010, Resoluciones de Sala Cuarta Voto 08928 del 18 de agosto del 2004, Voto 13099 del 4 de agosto del 2010, la Ley de Biodiversidad, entre otros), para la gestión del sitio y coordinación interinstitucional (MINAE, ICT, Municipalidad de Puntarenas, Ministerio de Cultura).

- Las normas existentes que permiten el desarrollo de servicios no esenciales por parte de actores locales - Las herramientas de planificación del ASP (Plan General de Manejo, planes específicos, efectividad de manejo, entre otros) - La cobertura boscosa del refugio (cobertura vegetal, bosque tropical seco, manglar) - El atractivo turístico, ambiental y cultural, de gran valor histórico, arqueológico, geológico, con belleza escénica, flora, fauna, senderos y playas abiertas al visitante, que han posicionado a San Lucas en el mercado turístico.

- La red de senderos que facilitan el desarrollo de acciones para el uso turístico y control de incendios forestales en el ASP -La concepción del refugio como fuente de desarrollo, generador de recursos socioeconómicos para la región.

-Un sitio de importancia para el resguardo de usuarios del Golfo, en caso de eventos climatológicos que puedan presentarse.

-La capacidad de gestión instalada (aunque sea mínima, se tiene presencia Institucional (SINAC, manejo del fuego) -Se cuenta con apoyo de Pro-parques, INCOP, empresas privadas turísticas (operadores turísticos) y asociaciones locales que colaboran con acciones en la isla.

- La ubicación geográfica del refugio, siendo una Isla accesible ubicada a 6 km de la costa de Puntarenas.

-El área marina pesca responsable como zona de amortiguamiento Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas 2.4.2 Debilidades - Carencia de recursos (humano, equipo, materiales, infraestructura, servicios básicos) para gestionar adecuadamente el Área Silvestre Protegida.

- La pérdida de infraestructura en varios sectores de las ruinas del antiguo Presidio falta de un plan de atención por parte de Patrimonio cultural, que contemplara la isla como un circuito.

- La existencia de varios sitios de fácil acceso a la isla, que generan inseguridad al visitante expuesto a robos y asaltos, y que además dificultan las labores de prevención, protección y control del recurso natural, cultural, histórico y arqueológico.

- La contaminación generada por visitantes no regulados en sitios sin vigilancia - La presencia de especies invasoras de flora en el sitio.

- La poca extensión marina perteneciente al refugio.

- El limitado conocimiento del recurso marino del refugio (vacíos de información) - El limitado conocimiento del sitio sobre el recurso natural y arqueológico entre los diferentes actores (Municipalidad de Puntarenas, ICT, SINAC y Ministerio de Cultura) y falta de socialización de la información existente.

- La inexistencia de demarcación física del área marina del refugio, falta de definición técnica de la normativa (6 metros en el área marina no inmersa dentro del área marina protegida) - La falta del reglamento de uso público para regular la actividad turística en el refugio.

2.4.3 Oportunidades -El acceso a servicios turísticos marinos en el Golfo de Nicoya -La existencia del Fidecomiso de INCOP-ICT-BN - Las actividades culturales (deportivas, religiosas, tradiciones locales).

- La existencia de grupos organizados (actores locales) que podrían participar en brindar servicios No Esenciales en el Refugio.

- El interés académico para realizar investigación en diferentes temas (recurso marino, arqueológico, flora, fauna, entre otros para llenar los vacíos de información).

- La existencia de actores claves (sector público, ONGs, cámaras, sector privado) para generar alianzas.

-La posibilidad de convenios con diferentes instancias (Municipalidad de Puntarenas, ONGs, entre otros) -La existencia de grupos de voluntariado organizados dispuestos a colaborar en el ASP.

- La actualización del Plan General de Manejo, con participación de actores clave - La demanda del turismo nacional por conocer el valioso aporte histórico cultural y natural del ASP.

-La posibilidad de convertir el sitio en un atractivo para el sector de cruceros que llegan a Caldera y Puntarenas.

-La existencia de diferentes fuentes (investigaciones, entre otros) que pueden ser aprovechadas para llenar vacíos de información.

-El interés de múltiples instancias públicas y privadas de aprovechar y proteger los recursos del refugio y área aledaña.

2.4.4 Amenazas - El vandalismo (robos, asaltos) - La cacería y pesca ilegal (existencia de cazadores y pescadores ilegales) - El Huaquerismo - La contaminación de residuos sólidos que llegan a la Isla, Golfo de Nicoya -Las especies Invasoras (teca, mamón).

- El abandono de animales domésticos (perros y gatos) en la isla.

- Un turismo ilegal, utilización del recurso presente en la Isla (arqueológico, cultural y natural por los visitantes) -El cambio climático -La sobre explotación del recurso marino -La existencia de propuestas o intensiones de desarrollo turístico de alto impacto sobre el refugio.

Los resultados del análisis anterior, permiten conocer cuáles aspectos deben priorizarse las acciones a implementar para generar cambios significativos que incidan de forma positiva en los elementos focales de manejo del RNVSISL. Estas acciones se ven reflejadas dentro de las metas y actividades propuestas en cada una de las Áreas estratégicas. Es importante destacar que las debilidades existentes son las que deben de ser priorizadas, en vista que al realizar esfuerzos se estará fortaleciendo la capacidad para disminuir las amenazas…” Ese es el resultado público del estudio y seguimiento que había dado el SINAC a esa isla como responsable e instancia técnica del manejo del Refugio Nacional de Vida Silvestre. Era una realidad constatable para el momento en que se promovió la actualización del Plan de Manejo, cuyos temas también fueron objeto de preocupación de todas las instancias involucradas en el proceso legislativo, ya que se realizaron mesas de trabajo en la subcomisión legislativa y que colaboraron en mejorar la propuesta legislativa inicial, para resolver las amenazas y deficiencias advertidas. Es una realidad indubitable, el propio SINAC lo señaló claramente en ese estudio, áreas de la isla que requerían mayor protección que la que tenían en ese momento y los usos que técnicamente resultaban acordes con la zona:

“…4.7.1 Zona de mínima o nula intervención (ZMNI) Los sectores del ASP definidos en esta categoría tienen un nivel de intervención mínimo o nulo. El objetivo o la condición deseada es mantener un estado inalterado o con un impacto casi imperceptible.

En este tipo de zona se plantean objetivos orientados a una protección absoluta, el desarrollo de una actividad turística de muy bajo impacto e intensidad y de poca frecuencia, así como la investigación y un uso administrativo dirigido al control y protección.

Esta zona está compuesta por: las islas Cocineras, Aves y Pan de Azúcar, las cuales se ubican en el límite sur del ASP y sirven de refugio a varias especies de aves marinas; el área del Humedal o manglar; las nacientes de agua de las Quebradas Hacienda Vieja, Control, Quebrada Coyol y sus zonas de protección; Cerro Control y Cerro Cirial; Punta Barrigona, Punta Tumba Bote y Punta Manzanillo. (Figura 14)…

4.7.2 Zona de baja intervención (ZBI) En esta categoría se propone que las intervenciones sean de un nivel muy bajo, aunque con mayores posibilidades para el desarrollo de prácticas de manejo y otras actividades. Se espera que cumpla objetivos orientados a un nivel estricto de sostenibilidad en el manejo y aprovechamiento de algunos recursos del ASP.

Se pueden permitir prácticas de uso administrativo o especial aprovechamiento regulado de recursos y un turismo de bajo impacto, pero con un poco más de intensidad y frecuencia que en la zona de mínima intervención.

Esta zona está compuesta por los sitios arqueológicos presentes en el RNVSISL; el área marina alrededor del ASP; Playa Cirialito, Playa Barrigona, Playa Bella vista, Playa Manzanillo y Playa Pilitas; el Sendero a Punta vigilante; Punta Vigilante, Punta Cirial, Punta El Coco y Punta Cirialito.

Esta área mide 401.6 ha que corresponde al 90.1% del área total del ASP (Figura 15).

En la zona de manejo de baja intervención se permite lo siguiente:

- La investigación científica o el monitoreo autorizado de acuerdo con la normativa vigente.

- Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, establecidos en la normativa y protocolos previamente autorizado por el SINAC.

- Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, siempre que resulten imprescindibles.

- Se permite la visita, con fines educativos, científicos, de prevención, protección y control y cualquier otra actividad definida por la administración del ASP.

- Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del AP.

4.7.3 Zona de mediana intervención (ZMI) El espacio o sitios que se defina para esta categoría tendrán una posibilidad de intervenciones de mediana intensidad, frecuencia e impacto en las prácticas y actividades que se puedan desarrollar.

Los objetivos van dirigidos a contar con espacios donde se puedan aprovechar los recursos donde el impacto sobre los mismos se pueda controlar, aunque con límites razonables establecidos por la legislación.

Se mantienen los recursos hídricos, ecosistemas, hábitat, biodiversidad y recursos culturales en un estado de salud aceptable.

La ZMI la integra el Sendero a Playa Cirial, el Sendero a Punta Cañón; Punta Cañón; Playa El Inglés, Playa El Limón, Playa Hacienda vieja y Playa Cirial.

Esta zona abarca una extensión de 15.2 Ha., que corresponde al 3.4% del territorio del refugio…

En esta zona de manejo se permite:

- La investigación científica y el monitoreo autorizado de acuerdo con la normativa vinculante.

- Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, previamente autorizado por SINAC.

- Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, siempre que resulten imprescindibles.

- Se permite la instalación de equipo e infraestructura de uso administrativo para la gestión del Refugio, siempre que resulten imprescindibles.

- Se permiten las visitas para grupos de personas organizadas, con fines turísticos, educativos, recreativos y científicos.

- Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del ASP.

- El aprovechamiento sostenible de los recursos marinos de acuerdo con la legislación nacional ambiental vigente y según los planes de manejo de recursos específicos que se elaboren.

- La práctica de usos y aprovechamientos tradicionales de acuerdo con el marco jurídico vigente y los objetivos de la categoría de manejo.

4.7.4 Zona de alta intervención (ZAI) Los sectores del ASP que se definan con esta categoría tendrían un nivel de intervención y uso mucho más alto que en las otras zonas. El objetivo o la condición deseada siempre será mantenerse dentro de un estado ambiental conforme a la categoría de manejo establecida para el RNVSISL, pero dejando más oportunidad para el desarrollo de prácticas y actividades propias de una alta intervención. Igual que en las demás zonas los objetivos de conservación y desarrollo están dirigidos a contar con espacios en los que se pueda mantener una actividad turística sostenible de carácter permanente y más intensiva, actividades productivas o de aprovechamiento de recursos más abiertas, sin dejar de tener controles y normas estrictas. La intervención para uso administrativo y especial tiene mayores posibilidades de desarrollarse mientras esté debidamente planificada y controlada (SINAC, 2016).

Esta zona la integra parte del área marina de la Bahía San Lucas; la Infraestructura del antiguo Presidio; Playa Cocos y Playa Tumbabotes; el Sendero a Playa Cocos, el Sendero a Playa Tumbabotes, el Sendero al Corral de Piedra, el Sendero a la Antigua Porqueriza, el Sendero a Playa El Inglés, el Sendero a Playa Hacienda vieja, el Sendero a Playa Bella vista, el Sendero a Punta de Oro (Punta El Coco), el Sendero Los Ceibos, el Sendero Mirador de Islas, el Sendero El Trogón; así como los dos sitios para infraestructura de Prevención, Protección y Control a ubicar en Tumbabote y Hacienda vieja. Así como los sitios de la parcela de Teca y la nueva casa de Guardaparques.

Esta zona abarca una extensión de 27 Ha., que corresponde al 6.1% del territorio del refugio En esta zona de manejo se permite:

-Actividades recreativas y turísticas: caminatas guiadas por senderos autorizados para la observación de flora, fauna y recursos históricos; la fotografía y video no comercial.

-La construcción de infraestructura para la atención de visitantes (por ejemplo, centros de visitantes, baterías sanitarias, senderos, miradores, plataformas, cafetería, tiendas de artesanía).

-La construcción de infraestructura para la administración del Refugio.

-La investigación científica y el monitoreo autorizado de acuerdo a la normativa vinculante.

-Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, previamente autorizado por el SINAC.

- Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, previamente autorizado por el SINAC.

-Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del ASP.

-En esta zona también se permite la instalación y operación de servicios no esenciales aprobados con base en la normativa vigente…” No se trata de una propuesta antojadiza ni que nace al azar, sino que proviene de la realidad del bien demanial. Aun cuando ese Plan General de Manejo en el punto 6 se indica que el área silvestre declarada como refugio nacional está bien categorizada, hay que tomar en cuenta que dicho plan se hizo, tal como lo indica el punto 7 del mismo, fundamentado en el marco normativo e institucional existente para ese momento, evidenciando una necesidad de colaboración interinstitucional, ante la insuficiencia de recursos técnicos y materiales propios que el mismo evidencia; y que, en todo caso, ello no obsta, para considerar que el Plan del 2012 remozado en el 2020, constituyó una base técnica que sí permitía determinar el estado de la zona en cuestión y proyectar, eventualmente, una mayor y mejor protección ambiental, lo cual es congruente con la categoría que otorga la ley aquí impugnada.

Costa Rica tiene obligaciones internacionales para proteger no solo el recurso ambiental, sino también arquitectónico cultural y así lo evidenció en la sentencia nro. 2010-13099, al referirse al decreto ejecutivo nro. 34282-TUR-MINAE-C, relativo a la Isla San Lucas, referenciada en el considerando V. Sin embargo, y a pesar de la existencia del decreto revisado en esa oportunidad, dada la falta de presupuesto, personal del SINAC y especialización del mismo en protección de patrimonio cultural, así como la falta de recursos, fue destruido parte de ese patrimonio, el cual nuestro país está obligado a tutelar y conservar para generaciones presentes y futuras.

A partir de lo anterior, se resolverán de forma particular cada uno de los alegatos de los accionantes.

VII.SOBRE LA ACUSADA REDUCCIÓN DE LA SUPERFICIE DEL ÁREA SILVESTRE PROTEGIDA Y DEL CAMBIO DE CATEGORÍA, SIN JUSTIFICACIÓN TÉCNICA. Los accionantes señalan que el ordinal 3 de la ley nro. 9892 delimita el área marina costera con una profundidad de hasta tres metros, lo que implica la reducción del área de protección anterior de 3 metros, que había sido adicionada por el decreto ejecutivo nro. 34282-TUR-MINAE-C. Estiman que la reducción en el área protegida podría alterar ciclos vitales y ecosistemas valiosos que funcionan junto con los humedales del Estero de Puntarenas, lo cual afecta a diferentes formas de vida de todo el Golfo y a un sitio considerado como criadero de diversas especies marinas que se reproducen en la zona. Aducen que el argumento de la reducción en la protección afecta la totalidad de la normativa impugnada, dado que no puede haber protección si se dejan por fuera decenas de hectáreas marinas.

Agregan que el decreto ejecutivo nro. 24282 comprendía como parte del Refugio Nacional de Vida Silvestre Isla San Lucas al islote Pan de Azúcar; sin embargo, la ley impugnada no indica cosa alguna al respecto, por lo que los accionantes plantean que también fue excluido de la protección. Asimismo, cuestionan que la Isla San Lucas, que era un refugio nacional de vida silvestre, haya cambiado de categoría de manejo a parque nacional, sin contar con estudios técnicos que así lo justificaran.

Conforme lo expuesto en el considerando VI de esta sentencia, tales alegatos deben ser desestimados. Este Tribunal considera que llevan razón los personeros de la Asamblea Legislativa que contestaron las audiencias conferidas en esta acción, al señalar que esta ley lo que hace es reforzar aún más la protección ambiental ya existente en esa área, confiriéndole la condición de parque nacional a la mayor parte de su extensión y conservando en un porcentaje menor, la misma protección ambiental con la que ya contaba. No se desafectó área alguna, ni se redujo el área de protección ambiental conferida previamente por la normativa citada, toda vez que lo único derogado por esta ley fueron los artículos 2 al 8 de la Ley 5469, Ley de Traspaso de la Isla San Lucas a Municipalidad de Puntarenas, de 25 de abril de 1974. De ahí que carece de todo fundamento la inconstitucionalidad alegada por los accionantes, al indicar que se redujo el área protegida declarada previamente por los decretos señalados.

Ciertamente, mediante decreto ejecutivo nro. 34282-TUR-MINAE-C del 25 de enero de 2008, se modificaron los límites del Refugio Nacional de Vida Silvestre San Lucas, en el artículo 1º, en el siguiente sentido:

“Artículo 1º—Modifíquese el artículo 1 del Decreto Ejecutivo Nº 33327-MINAE, publicado en La Gaceta Nº 172 de 17 de septiembre de 2006 para que se lea de la siguiente manera:

Artículo 1º—…Adiciónese al Refugio Nacional de Vida Silvestre Isla San Lucas una porción de agua que se describe por las siguientes coordenadas Costa Rica Lambert Norte: B. Un área marino-costera comprendida por las aguas alrededor de la Isla San Lucas hasta una profundidad de 6 m (…)” (la negrita fue incorporada).

Esa adición territorial se mantuvo incólume, según lo resuelto por este Tribunal en la sentencia nro. 2010-13099 de las 14:46 horas del 4 de agosto de 2010. Así, los límites del Refugio Nacional de Vida Silvestre Isla San Lucas fueron, en efecto, ampliados ante la adición de un “área marino-costera comprendida por las aguas alrededor de la Isla San Lucas hasta una profundidad de 6 m”. El artículo 3 cuestionado por los accionantes dispone lo siguiente:

“ARTÍCULO 3- Delimitaciones. El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera.

La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo, Edición 3-IGNCR en la latitud norte 9º 55' 55" - 9 57' 20" y longitud oeste 84º 53' 23", con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha).

El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m). Inserto, dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística (…)” (el resaltado fue agregado).

Ahora bien, lo anterior implica que, conforme la ley cuestionada, una parte del territorio de la Isla San Lucas dejó de tener la categoría de manejo de “refugio nacional de vida silvestre”, para convertirse en “parque nacional”. Sin embargo, esa disposición no eliminó el Refugio Nacional de Vida Silvestre Isla San Lucas.

Tal como se demostró en este expediente, los decretos ejecutivos nros. 29277-MINAE y 34282-TUR-MINAE-C continúan vigentes, lo que implica que, una parte de la isla en cuestión (la reclamada expresamente por los accionantes) no ha perdido la condición de Refugio Nacional de Vida Silvestre Isla San Lucas, y la mayor parte de ella ha adquirido una tutela superior, al ser considerada parque nacional. Igualmente, lo relativo al área marino costera de la isla, pues el islote Pan de Azúcar y, demás superficies continúan siendo patrimonio natural del Estado, al ser parte del Refugio Nacional de Vida Silvestre Isla San Lucas estatal. De modo que, geográficamente no hay desafectación ambiental alguna. Y, conforme lo dispuesto en el artículo 7 de la misma ley aquí impugnada, esa área tiene que ser considerada en los estudios técnicos que se realicen, a fin de establecer en su caso el manejo ambiental más proteccionista que corresponda en su caso.

Por otro lado, aun cuando este Tribunal mantiene su criterio en el sentido que, incluso una desmejora, aún del nivel de protección ambiental de una zona, requiere de un estudio técnico previo, lo cierto es que, este caso en particular, no configura esa situación. Aquí no estamos frente a ninguna condición de una regresión de la protección ambiental, valorando la situación legal, real y actual de la isla. Lejos de ello, tal como se demostró en el considerando VI, en caso de anularse esta ley y quedar vigente la normativa anterior, el área mantendría un nivel de protección ambiental menor, con las limitaciones presupuestarias y administrativas que ya ha denotado el SINAC para poder tutelar adecuadamente, no solo el área ambiental, sino también de patrimonio histórico, con las mismas facultades turísticas, pero con mayores deficiencias para ejercer el control adecuado y de desarrollo procurado por las leyes previas cuya vigencia también se mantendrían.

Por otro lado, dada la particularidad de este caso por todo lo citado previamente, tampoco es cierto que la ley aquí cuestionada y que fue tramitada mediante expediente legislativo nro. 21.287, sea inconstitucional por carecer de todo estudio técnico y fundamento objetivo. Tal como quedó acreditado, es un área que ya era administrada y estudiada por el SINAC, es decir, la autoridad técnica que determina el plan de manejo a seguir, conforme al nivel de protección asignado ya había emitido y admitido algunas deficiencias al respecto. En este caso, la ley en cuestión no reduce su tutela ambiental en absoluto, lejos de ello lo aumenta, al conferirle la condición de parque nacional, a fin de salvaguardar la situación de amenaza que es advertida por el propio SINAC en la actualización del plan de manejo de esa área y cuyos motivos también se reflejan en la motivación de la propuesta legislativa en cuestión que dio origen a la ley nro. 9892. Aunado a lo anterior, este Tribunal, en relación con un caso de la Isla del Coco, señaló lo siguiente:

“…V. En relación con la alegada violación del artículo 3 del Convenio para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América -aprobado por Ley número 3763, de primero de octubre de mil novecientos sesenta y seis- en relación con el artículo 7 constitucional, que en lo que interesa dice así:

"Los Gobiernos Contratantes convienen en que los límites de los parques nacionales no serán alterados ni enajenada parte alguna de ellos sino por acción de la autoridad legislativa competente. Las riquezas existentes en ellos no se explotarán con fines comerciales.

Los Gobiernos Contratantes convienen en prohibir la caza, la matanza y la captura de especímenes de la fauna y la destrucción y recolección de ejemplares de la flora en los parques nacionales, excepto cuando se haga por las autoridades del parque o por orden o bajo vigilancia de las mismas o para investigaciones científicas debidamente autorizadas." Deben esas normas interpretarse en sentido restrictivo, de manera que, la exigencia de establecer los límites de los parques nacionales a través de una ley es únicamente cuando va en detrimento del mismo, es decir, cuando se quiera reducir su extensión, y no cuando se quieran extender los límites de las zonas protectoras del patrimonio forestal del Estado.” (Sentencia nro. 1993-5399, de las 16:39 horas del 26 de octubre de 1993) En similar sentido, en sentencia nro. 2006-5975, de las 15:14 horas del 3 de mayo de 2006, esta Sala indicó lo siguiente:

“VII.- Sobre el aumento y reducción de las áreas silvestres protegidas.

En el memorial de interposición de la acción de inconstitucionalidad, el accionante impugna –y lo señala como motivo de inconstitucionalidad-, la derogatoria del Decreto 23069-MIRENEM por el Decreto 29019-MINAE pues tácitamente redujo la extensión del Refugio de Vida Silvestre Gandoca-Manzanillo, dado que éste último había ampliado los límites del Refugio.

Analizando los decretos promulgados relacionados con el Refugio Gandoca-Manzanillo, se observa como el Poder Ejecutivo ha emitido varios en procura de regular la situación del mismo. Con el objeto de aclarar la situación actual, es conveniente hacer un recuento de los relacionados con el objeto de esta acción. Tenemos en primer término el DE-16614-MAG de 29 de octubre de 1985, que crea el Refugio Nacional de Vida Silvestre Gandoca-Manzanillo (REGAMA). El fundamento legal del decreto está concretamente en el artículo 2 de la Ley N° 4465, pero especialmente en el artículo 18 de la Ley N° 6919, Ley de Conservación de la Fauna Silvestre, ya derogada, pero que en aquel momento disponía:

“Artículo 18.- Son refugios nacionales de fauna silvestre los que el Poder Ejecutivo declare como tales, para la protección y la investigación de la flora y la fauna silvestre, en especial de aquella en vías de extinción. Queda autorizado el Poder Ejecutivo para establecer, dentro de las reservas forestales y en terrenos particulares, áreas bajo la clasificación de refugios nacionales de fauna silvestre, las que, para efectos de conservación de la fauna silvestre, quedarán bajo la administración del Departamento de Vida Silvestre de la Dirección General Forestal del Ministerio de Agricultura y Ganadería.(…)” El artículo 6° del Decreto 16614-MAG excluyó expresamente de ese refugio la zona urbana de Gandoca, Manzanillo y Puerto Viejo. Posteriormente se emitió el DE-23069-MIRENEM de 5 de abril de 1994; el artículo 16 de ese Decreto derogó el art. 6 del DE-16614. La consecuencia inmediata de ello, es que las áreas urbanas de Gandoca, Manzanillo y Puerto Viejo pasaron a formar parte del Refugio Gandoca-Manzanillo.

Más adelante se promulgó el Decreto DE-29019-MINAE de 31 de octubre del 2000, el cual, a través del artículo 8°, derogó el Decreto 23069-MIRENEM; con ello, tácitamente recobró vigencia el artículo 6 del DE-16614. Se produce en ese momento una disminución tácita del territorio de la reserva al excluirse de nuevo las áreas urbanas de Gandoca, Manzanillo y Puerto Viejo, lo que dejaba las cosas en la situación en que lo habría dispuesto el Decreto N° 16614-MAG. Sin embargo, posteriormente el Poder Ejecutivo emitió el DE-32753-MINAE de 16 de mayo del 2005, el cual derogó expresamente el artículo 6 del DE-16614; nuevamente las zonas urbanas de Gandoca, Manzanillo y Puerto Viejo pasan a formar parte del Refugio Nacional de Vida Silvestre Gandoca-Manzanillo, situación que se mantiene a la fecha.

Sobre el aumento y/o disminución de los límites territoriales del patrimonio forestal, este Tribunal, en la sentencia N° 1999-5399 de las 16:39 horas del 26 de octubre de 1993, en la cual la Sala señaló:

“…si el Poder Ejecutivo está legitimado para señalar los límites de su patrimonio forestal lo será a través de la vía reglamentaria y no la legal, con la debida indemnización de las propiedades sobre las que se extienda el patrimonio forestal, ya que en virtud del artículo 9 constitucional y de la teoría de la separación de Poderes, la Asamblea Legislativa es el único órgano constitucional facultado para emitir leyes. Por ello cuando se trate de un bien demanial resulta ilógico pensar que el Estado esté limitado o imposibilitado en su actuación en resguardo de la flora y la fauna de nuestras tierras.

II.En este orden de ideas, puesto que esta acción se dirige contra un decreto ejecutivo que amplió los límites de un parque nacional -Isla del Coco- extendiéndose a una distancia de quince kilómetros sobre el mar, medida desde la línea de bajamar de la costa, es que es importante determinar que lo hace en el pleno ejercicio de sus facultades, tanto legales como constitucionales, por tratarse de un bien demanial.(…)

V.En relación con la alegada violación del artículo 3 del Convenio para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América -aprobado por Ley número 3763, de primero de octubre de mil novecientos sesenta y seis- en relación con el artículo 7 constitucional, que en lo que interesa dice así:

"Los Gobiernos Contratantes convienen en que los límites de los parques nacionales no serán alterados ni enajenada parte alguna de ellos sino por acción de la autoridad legislativa competente. Las riquezas existentes en ellos no se explotarán con fines comerciales.

Los Gobiernos Contratantes convienen en prohibir la caza, la matanza y la captura de especimenes de la fauna y la destrucción y recolección de ejemplares de la flora en los parques nacionales, excepto cuando se haga por las autoridades del parque o por orden o bajo vigilancia de las mismas o para investigaciones científicas debidamente autorizadas." Deben esas normas interpretarse en sentido restrictivo, de manera que, la exigencia de establecer los límites de los parques nacionales a través de una ley es únicamente cuando va en detrimento del mismo, es decir, cuando se quiera reducir su extensión, y no cuando se quieran extender los límites de las zonas protectoras del patrimonio forestal del Estado. Este artículo debe completarse con el artículo 40 de la Ley Forestal que dice:

"El área de las reservas forestales, zonas protectoras, parques nacionales, refugios de vida silvestre, reservas biológicas del patrimonio forestal, sólo podrá ser reducida por ley de la República, previos estudios técnicos correspondientes que justifiquen esta medida." Y esto es así en virtud de que el bien jurídico que se protege es el "recurso forestal", término que "significa la protección y preservación de la integridad del medio ambiente natural," (resolución de la Sala Constitucional número 2233-93, de las nueve horas treinta y seis minutos del veintiocho de mayo) que existe en la zona declarada como parque nacional, y que es reconocido tanto por la legislación internacional, por las leyes especiales dictadas al efecto, como por los textos de las cartas políticas. En este sentido, el artículo 69 de la Constitución Política es que habla de "explotación racional de la tierra", constituyéndose un principio fundamental su protección (…).” (la negrita no es de original) Adviértase lo indicado en estos precedentes constitucionales, aun cuando en este caso estamos frente a la discusión de dos leyes de igual rango, ni siquiera vía decreto, como incluso es el caso del precedente, “cuando se trate de un bien demanial, resulta ilógico pensar que el Estado esté limitado o imposibilitado en su actuación en resguardo de la flora y la fauna de nuestras tierras”.

Y ese es precisamente el caso aquí. No solo porque no hay reducción de área protegida, sino todo lo contrario, la tutela es ampliada, y porque lo que se dispone es un mínimo de espacio de manejo diferenciado, basado en las propias áreas que, según los decretos previos existentes y los planes de manejo, ya eran dedicados a la actividad turística sostenible, a la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental. Basta con verificar la condición normativa y real de la zona en aquel momento.

Se reitera y así quedó debidamente acreditado en la audiencia de este expediente, realizada el pasado 4 de mayo, que la categoría de parque, en nuestra legislación, es superior a la de un refugio nacional de vida silvestre. De manera que, en el sub examine estamos ante una propiedad que ya es del Estado, mantiene su plena titularidad y que la elevación de su categoría o área de manejo no desmejora, en absoluto, su ámbito de protección ni afecta a terceros. De manera que, no estamos ante el mismo supuesto, por ejemplo, del Refugio Nacional de Vida Silvestre Ostional, de la sentencia nro. 2022-22606, en el cual se producía una reducción de la protección ambiental, por haber desafectación, al pasar de un régimen de naturaleza pública a mixta con la inclusión de propiedad privada. Para la desafectación o reducción de zonas protegidas, este tribunal no modifica la postura de que deben contar con un estudio específico previo.

Pero este caso es totalmente diferente; por el contrario, no hay una desafectación, sino una mayor protección. De hecho, el plan de manejo realizado por el SINAC con el que ya se contaba para el 2020 y que se basa en diferentes estudios técnicos que ahí se citan, ya había advertido la necesidad de tutelar con mayor atención ciertas áreas y la posibilidad de establecer otros usos en otras y la necesidad ineludible de establecer servicios esenciales dentro de la zona. Si bien es cierto el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas dispone en el punto 6 lo siguiente: “Analizada la normativa vigente, los objetivos de creación del ASP, contexto geográfico, ecológico, zonificación, oportunidades de desarrollo sostenible y socioeconómico puede concluirse que el área silvestre declarada como refugio nacional está bien categorizada”, hay que tomar en cuenta que dicho Plan se hizo, tal como lo indica el punto 7 del mismo, fundamentado en el marco normativo e institucional existente para ese momento, evidenciando una necesidad de colaboración interinstitucional, ante la insuficiencia de recursos técnicos y materiales propios que el mismo evidencia.

En todo caso, lo anterior no obsta, para considerar que el Plan del 2012 remozado en el 2020, constituyó una base técnica que sí permitía determinar el estado de la zona en cuestión y proyectar, eventualmente, una mayor y mejor protección ambiental, lo cual es congruente con la categoría que otorga esta ley. De manera que, no es cierto que los legisladores carecieran de todo sustento técnico en aquel momento para la toma de la decisión adoptada. Ya existía y permite la decisión legislativa que ahora se adopta; lo que no existe en este caso, es evidencia que indique que se está produciendo un daño ambiental, o que se pondría en riesgo el ambiente porque se elevó su categoría de protección. En ese sentido, no se advierte, tal como lo manifestaron los legisladores en su momento, que se haya producido una desmejora o riesgo ambiental en la tutela de esta zona mediante esta ley. Lejos de ello, con esta categorización, un nuevo plan de manejo puede reforzar la protección ambiental que ya tenía el mismo, el cual se reitera, tendría que contar igualmente con todos los estudios técnicos que implicaría, no solo ambientales, sino también aquellos que procuran la protección del patrimonio histórico con la debida y obligatoria intervención del competente para esos efectos, lo cual no sucedería en caso de ser anulada la ley, pues ineludiblemente reduciría su protección devolviéndola a ese estado anterior y dejando solo en manos del SINAC su custodia, con los peligros advertidos en los fundamentos que postularon esta ley.

Bajo ese estadio, lejos de procurar esta jurisdicción la potenciación de una protección ambiental, la reduciría, basándose estrictamente en una normativa reglamentaria infralegal, lo cual no resulta razonable en una interpretación sistemática del ordenamiento jurídico y de tutela constitucional. Por consiguiente, se desestiman ambos agravios.

VIII. SOBRE EL CUESTIONAMIENTO DE LA EXISTENCIA DE UNA ZONA DE APROVECHAMIENTO TURÍSTICO EN LA ISLA SAN LUCAS Y SU DELIMITACIÓN

Aducen los accionantes que los ordinales 3 y 16, así como la totalidad de la ley nro. 9892 permiten que un refugio de vida silvestre se transforme en un parque con zona turística, donde se habilitarán muelles, atracaderos, servicios de alimentación y varias facilidades marítimas; todo ello en numerus apertus, como si se tratara de una especie de parque de diversiones, demeritando los objetivos de las áreas de conservación y provocando con ello contaminación sónica en el ecosistema marino por los motores de las lanchas y botes que lleguen al sitio, contaminación lumínica, con aceites, combustibles, impacto en el suelo marino en humedales, sedimentación y arrecifes. Sostienen que el uso turístico y comercial previsto es incompatible con un parque nacional, y que en los ordinales 3 y 6 de la ley nro. 9892 se estableció una zona turística de manejo diferenciado, pese a la falta de estudios que justifiquen su creación.

En primer término, debe indicarse que la Isla San Lucas, previo a la emisión de esta ley, ya había sido declarada en el artículo 2 del decreto nro. 34282-TUR-MINAE-C, revisado en la sentencia nro. 2010-13099, “de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos del presente decreto, así como la conservación y restauración de las edificaciones del antiguo penal en la Isla San Lucas. Las dependencias de la Administración Pública y del Sector Privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la Isla.” Esto lo repite el artículo 2 de la ley impugnada: “Se declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos de la presente ley, así como la conservación y restauración de las edificaciones del antiguo presidio de la Isla San Lucas.

Las dependencias de la Administración pública y del sector privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la isla.” La diferencia radica en que la ley aquí impugnada, más allá de ese decreto, establece una zona con una protección mayor en el artículo 3 aquí impugnado, al declarar parque nacional 462 has y permitiendo un plan de manejo diferenciado únicamente en el área restante, que es mucho menor, y que sería dedicada a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, bajo la misma condición de Refugio que ya tenía. Áreas que, según se acreditó en el expediente legislativo fueron debidamente identificadas y actualizadas con el Instituto Geográfico Nacional.

Para tales efectos, y sobre la actividad turística, el artículo 5 de aquel decreto establecía que, para el desarrollo de actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, el ICT elaboraría un Plan Maestro de Desarrollo Turístico Sostenible, que comprendería un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural esa área específica. Este Tribunal, reitera lo indicado en la sentencia nro. 2010-13099, que al respecto indicó:

“…IX.- Sobre las implicaciones del desarrollo sustentable y el turismo.- La piedra angular del desarrollo está en la sustentabilidad ambiental, tiene como objetivo proteger y conservar el medio ambiente y sus recursos naturales, en equilibrio con la diversificación económica y el mejoramiento de la calidad de vida humana. La idea medular de los principios de derecho ambiental radica en la utilización racional de los recursos naturales, con la protección del medio ambiente para asegurar la sustentabilidad de las generaciones presentes y futuras. Toda actividad económica o productiva que intervenga o utilice el medio ambiente, debe responder a la filosofía del desarrollo sostenible según el impacto que tenga en él; en ese sentido, al fundarse el Poder Ejecutivo en este tipo de objetivos para el desarrollo económico y social, estima esta Sala que el turismo rural como tal, debe responder a esos valores que protegen el desarrollo sostenible, porque no podría ser la excepción, y es constitucionalmente relevante controlar las repercusiones que pueda generar en el ambiente.

Ejemplo de ello, es la Certificación para la Sostenibilidad Turística que emite el Instituto Costarricense de Turismo como un componente de suma importancia, que denota un avance por proteger el derecho al ambiente sano y ecológicamente equilibrado a la vez de impulsar la diversidad económica, esta medida genera incentivos a favor de las empresas dedicadas a la explotación turística de los recursos naturales y culturales. Por otra parte, la Ley No. 8724, que es Ley de Fomento del Turismo Rural Comunitario, busca tener beneficios a familias y comunidades al utilizar sus localidades como destinos turísticos, y entre sus normas está el inciso a) del artículo 2 que señala: “Dar un uso óptimo a los recursos ambientales que son un elemento fundamental del desarrollo turístico, manteniendo los procesos ecológicos esenciales y ayudando a conservar los recursos naturales y la diversidad biológica.” En este sentido, el Código Ético Mundial para el Turismo, adoptado por la resolución A/RES/406(XIII) de la decimotercera Asamblea General de la OMT en Santiago de Chile, el 27 de diciembre al 1 de octubre de 1999, y adoptado por la Asamblea General de las Naciones Unidas en resolución A/RES/56/212 del 21 de diciembre de 2001, establece que:

“Artículo 3.

El turismo, factor de desarrollo sostenible 1. Todos los agentes del desarrollo turístico tienen el deber de salvaguardar el medio ambiente y los recursos naturales, en la perspectiva de un crecimiento económico saneado, constante y sostenible, que sea capaz de satisfacer equitativamente las necesidades y aspiraciones de las generaciones presentes y futuras.

2. Las autoridades públicas nacionales, regionales y locales favorecerán e incentivarán todas las modalidades de desarrollo turístico que permitan ahorrar recursos naturales escasos y valiosos, en particular el agua y la energía, y evitar en lo posible la producción de desechos.

…

4. Se concebirá la infraestructura y se programarán las actividades turísticas de forma que se proteja el patrimonio natural que constituyen los ecosistemas y la diversidad biológica, y que se preserven las especies en peligro de la fauna y de la flora silvestre. Los agentes del desarrollo turístico, y en particular los profesionales del sector, deben admitir que se impongan limitaciones a sus actividades cuando éstas se ejerzan en espacios particularmente vulnerables: regiones desérticas, polares o de alta montaña, litorales, selvas tropicales o zonas húmedas, que sean idóneos para la creación de parques naturales o reservas protegidas.

5. El turismo de naturaleza y el ecoturismo se reconocen como formas de turismo particularmente enriquecedoras y valorizadoras, siempre que respeten el patrimonio natural y la población local y se ajusten a la capacidad de ocupación de los lugares turísticos." Para el acceso equitativo del desarrollo, se debe abandonar la idea tradicional de que ésta solo se produce en las áreas urbanas, cuando en el medio rural pueden explotarse otros factores que hacen único el lugar, procurando por supuesto no amenazar esas condiciones. No hay duda que la explotación de los recursos naturales implica diversidad económica, en esa medida el medio ambiente requiere de protección para soportar las cargas de la intervención del ser humano, por lo que es necesario asegurar un desarrollo razonable en equilibrio con el medio ambiente, de manera que el control que podría ejercerse se incrementaría según el impacto que pueda tener sobre él.

Por consiguiente, el desarrollo turístico no debe implicar la destrucción de los bienes del dominio público o del entorno, porque depende de su preservación para alcanzar el mejoramiento económico de las comunidades rurales dentro de los parámetros de la sostenibilidad. Dentro de los fines constitucionales del Estado está la de desarrollar políticas que reduzcan las brechas sociales y económicas, ajustado por supuesto a los ambientes, sean naturales, rurales o mixtos, todo ello nace de lo preceptuado por el artículo 50 constitucional. Tener acceso al desarrollo, en materia de oportunidades laborales, o en la calidad de vida, y por ende, un progreso económico forman parte del reconocimiento y avance de los derechos humanos, de ahí que el desarrollo rural a través del turismo no debe significar para los individuos abandonar sus costumbres y formas de vida tradicionales para migrar hacia las ciudades, sino un ajuste de ellas con las necesidades y avances actuales.

En este sentido, en el criterio de la Sala el verdadero reto del ser humano es que se genere el progreso y –porque no- felicidad (material y espiritual) sin que amenace los recursos disponibles en el medio ambiente; lo contrario simplemente se traduciría en desigualdades sociales que impiden avanzar hacia un nuevo estadio de desarrollo humano. La Sala reconoce que el balance es muy delicado entre uno y otro, pero para que se dé, sin desmejorar el medio ambiente, se debe acudir a la ciencia y a la técnica, para determinar cuáles son las cargas que pueden soportar determinados ambientes naturales y sus recursos, sin vulnerar el derecho de las generaciones presentes y futuras. Por todo ello, el conflicto entre la protección al medio ambiente y otros derechos que se derivan de él, ampliamente reconocidos en instrumentos internacionales de derechos humanos, merecen estas consideraciones de parte de este Tribunal Constitucional.

Esta Sala estima que el desarrollo rural, que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible. De ahí que si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones.

X.Sobre la protección al entorno y paisajes del patrimonio natural y cultural.- Este Tribunal Constitucional ha derivado de los artículos 7, 48, 50 y 89 constitucionales, y los Tratados Internacionales enunciados, los derechos y principios ambientales, pero a la vez, reconoce la necesidad del Estado de contribuir con políticas para impulsar la diversidad económica, a la vez que de conservación y protección de los bienes culturales y naturales, porque sin uno ni el otro, no podría entenderse que existe progreso humano equitativo para todos los sectores sociales. La protección del ambiente, la diversificación económica y la calidad de vida, son objetivos legítimos del Estado, al tener que implementar políticas de desarrollo en lo urbano y rural. Pero el tipo de progreso en un medio ambiente rural, debe apartarse de un modelo de desarrollo centralista, que supone que ésta puede darse únicamente en lo urbano, cuando debe explotar particularidades y otras necesidades específicas.

Ahora bien, el desarrollo rural, con base en el turismo, debe fundarse sobre otros ejes particulares: uno de ellos es el que la doctrina señala como la conservación de los valores propios de los espacios rurales. Este principio radica en que los espacios rurales exigen ser conservados sosteniblemente. En tal sentido, el bosque, el mar, la montaña, los volcanes, los manglares, humedales, etc. propician diferentes tipos de escenarios de desarrollo como intereses puedan existir. En sí, cada uno se constituye en un valor de apreciación escénica sujeta a la protección constitucional. Pero la labor de focalizar y estimular este tipo de políticas de desarrollo rural, son materias que corresponden al Legislador y al Poder Ejecutivo en sus funciones constitucionales. Esta Sala debe resaltar que la conservación de las características particulares de los ambientes rurales o del entorno natural o paisajista, es un valor contenido en el artículo 89 constitucional que requiere protección y debe dirigirse a la protección del entorno que potencia su valía, no solo como espacio rural, sino también como un destino turístico para que se hagan sentir los efectos positivos en las comunidades vecinas. En este sentido, el artículo 35 de la Ley Orgánica del Ambiente establece que:

“La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos:

a…

…

• f)Proteger los entornos naturales y paisajistas de los sitios y centro históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico de importancia para la cultura y la identidad nacional.” La Constitución Política señala como objetivos de relevancia jurídica no solo la protección, sino conservación y desarrollo del patrimonio histórico y artístico de la Nación. En el diccionario de la Real Academia Española proteger tiene los siguientes significados: 1.- Amparar, favorecer, defender.; y 2.- Resguardar a una persona, animal o cosa de un perjuicio o peligro, poniéndole algo encima, rodeándole, etc. Por su parte, conservar significa: 1. Mantener algo o cuidar de su permanencia; 2. Mantener vivo y sin daño a alguien; 3. Continuar la práctica de costumbres, virtudes y cosas semejantes; 4. Guardar con cuidado algo, entre otras acepciones.

Y desarrollar en el significado aplicable es acrecentar, dar incremento a algo de orden físico, intelectual o moral. En sintonía con lo anterior, la Ley autoriza como objetivos legítimos la creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas con sitios o centros históricos, arquitectónicos y arqueológicos, lo cual implica que en el manejo de los recursos culturales, es permitida la intervención del hombre para el mantenimiento, la guarda, la preservación y el cuido de los bienes que se ubican en su entorno, a la vez que en el desarrollo se favorece el rescate y realce de los sitios de interés que puedan existir en el lugar y sus alrededores. Los bienes de interés cultural requieren de protección y medidas conservacionistas en el medio en que se encuentran, para que se le pueda singularizar como recurso turístico, o de lo contrario la omisión del Estado implicaría un abandono ilícito desde el punto de vista constitucional y a la luz de los tratados internacionales vigentes en la República.

Aunado a lo anterior, conservar implica la idea de asegurar protección y permanencia, dentro del contexto de los valores y costumbres propios de los espacios urbanos y rurales, por lo que se deben admitir criterios y prácticas de sustentabilidad. La administración y el desarrollo del bien se debe proteger, así como realzar el bien según las características en su medio ambiente, por lo que si se trata de infraestructura creada por el hombre, implicará un manejo técnico, que exige medidas de mantenimiento e inversión para asegurarle el desarrollo a la hora de ser puesto en valor, como su conservación. En el caso de la Isla San Lucas, el inciso f) del numeral 38 de la Ley Orgánica del Ambiente aplica en el tanto existen no solo elementos del patrimonio natural, pues como sitio con edificaciones históricos, y arqueológicos, son importantes para la cultura e identidad nacional. En consecuencia con lo anterior, es importante citar el Código Ético Mundial para el Turismo, en cuanto señala que:

"Artículo 4 El turismo, factor de aprovechamiento y enriquecimiento del patrimonio cultural de la humanidad Los recursos turísticos pertenecen al patrimonio común de la humanidad. Las comunidades en cuyo territorio se encuentran tienen con respecto a ellos derechos y obligaciones particulares.

Las políticas y actividades turísticas se llevarán a cabo con respeto al patrimonio artístico, arqueológico y cultural, que deben proteger y transmitir a las generaciones futuras. Se concederá particular atención a la protección y a la rehabilitación de los monumentos, santuarios y museos, así como de los lugares de interés histórico o arqueológico, que deben estar ampliamente abiertos a la frecuentación turística. Se fomentará el acceso del público a los bienes y monumentos culturales de propiedad privada con todo respeto a los derechos de sus propietarios, así como a los edificios religiosos sin perjuicio de las necesidades del culto.

Los recursos procedentes de la frecuentación de los sitios y monumentos de interés cultural habrían de asignarse preferentemente, al menos en parte, al mantenimiento, a la protección, a la mejora y al enriquecimiento de ese patrimonio.

La actividad turística se organizará de modo que permita la supervivencia y el florecimiento de la producción cultural y artesanal tradicional, así como del folklore, y que no conduzca a su normalización y empobrecimiento. (lo resaltado en negrita no es del original).

La legislación costarricense regula en forma escasa la posible administración de estos sitios históricos, pero de las normas aisladas se deriva de la protección de los entornos naturales y paisajísticos, los cuales admite la intervención del hombre, pero con el ánimo de mejoramiento de parajes, no su destrucción o abandonamiento. La Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, Ley No. 7555 establece que:

“Artículo 9. Obligaciones y Derechos La declaratoria de bienes inmuebles como monumento, edificación o sitio histórico, conlleva la obligación por parte de los propietarios, poseedores o titulares de derechos reales sobre los bienes así declarados:

Conservar, preservar y mantener adecuadamente los bienes.

...

• j)[…] El Estado y la municipalidad respectiva tendrá el derecho de expropiar los bienes; podrán ejercerlo en beneficio de otras entidades públicas. Este derecho abarca los bienes que atenten contra la armonía ambiental o comporten un riesgo para conservar los que han sido declarados de interés histórico-arquitectónico.

El Poder Ejecutivo y la municipalidad respectiva estarán obligados a impedir el derribo total o parcial de una edificación protegida. Garantizar que el uso de los bienes protegidos no alterará su conservación y además será congruente con las características propias del inmueble. En todo caso, ese uso no deberá reñir con la moral, las buenas costumbres ni el orden público.” (lo resaltado en negrita no es del original) Para la Sala también es importante señalar que los artículos 71 y 72 de la Ley Orgánica del Ambiente delimitan con claridad lo anterior:

“Artículo 71.- Contaminación visual. Se considerarán contaminación visual, las acciones, obras o instalaciones que sobrepasen, en perjuicio temporal o permanente del paisaje, los límites máximos admisibles por las normas técnicas establecidas o que se emitan en el futuro.

Artículo 72.- Conservación del paisaje. La autoridad competente promoverá que los sectores públicos y privados participen en la conservación del paisaje.

Cuando para realizar una obra se necesite afectarlo, el paisaje resultante deberá ser por lo menos, da calidad igual que el anterior.” De lo anterior, se extrae no solo los fines de conservación, preservación y desarrollo, como también el principio de sostenibilidad en el aprovechamiento y desarrollo de los bienes del patrimonio artístico, arqueológico y cultural, para enriquecer su entorno mejorando su belleza escénica, y dar acceso y seguridad a los bienes y personas, según aconsejen las normas técnicas y científicas en las respectivas materias. Por otra parte, aparejado con la necesidad de la rehabilitación, restauración, mantenimiento, y control de las actividades, están al final y al cabo, los beneficios sociales y económicos de muchos sectores que dependerán de esta actividad…” En similar sentido, la ley impugnada en el artículo 7 dispone:

“ARTÍCULO 7-Alcances y restricciones. El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos.

Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar.

En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones.

Cualquier conflicto de competencias será dirimido por el ministro o la ministra de Ambiente y Energía.” Denótese que en el artículo 5 del decreto avalado por este Tribunal y delimitado en esas condiciones, el desarrollo de actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, dependían del Plan Maestro de Desarrollo Turístico Sostenible que desarrollaría el ICT. En este caso, la ley establece igualmente un Plan Maestro para todo el parque nacional y un plan de manejo diferenciado para el área de turismo sostenible que, actualmente, es definido técnicamente por una Junta Directiva. De manera que, la ley nro. 9892 no innova la declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible en la Isla San Lucas cuestionada por los accionantes, sino que repite lo ya preceptuado previamente en el Decreto Ejecutivo nro. 34282. Por otro lado, como ya se indicó, este Tribunal en la sentencia nro. 2010-13099, advirtió que, el mero hecho de que la ley contemple la posibilidad de realizar determinadas actividades turísticas sostenibles y el desarrollo de cierta infraestructura, no configura necesariamente una violación al ambiente y al patrimonio cultural o natural, bajo determinadas condiciones:

“…El desarrollo de la infraestructura debe ser compatible con los principios de sustentabilidad ambiental, su protección y conservación, por el contrario serían cuestionables constitucionalmente sí se realizaran obras que no tuvieran en cuenta los regímenes de protección vigentes en la Isla, como la construcción de obras de infraestructura de gran envergadura, dado que la vigencia del régimen como área protegida implicaría un cambio sustancial al uso de suelo, y no por las obras humanas que existieron mucho antes de la declaratoria de la Isla como Área Silvestre Protegida y de patrimonio histórico-arquitectónico. De ahí que, no estima la Sala que los artículos 2, 3, 4, 6 y 7 del Decreto Ejecutivo 34282-TUR-MINAET-C presenten vicios de constitucionalidad, pero entendido con los siguientes matices. La declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible, que señala el numeral 2, deberá entenderse constitucional mientras que la conservación y restauración de las edificaciones del antiguo penal y aquellas que fueron construidas con ocasión de su existencia, queden circunscritas a las labores de conservación, protección y mejoramiento de su entorno.

Lo mismo debe ocurrir con los sitios arqueológicos y el cementerio ubicado en Playa Cocos, sin perjuicio, claro está, de los estudios arqueológicos y científicos que deberán ser objeto. En cuanto a la infraestructura destinada para el uso del turista, ésta deberá estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos y a ésta, las instalaciones que se deberán construir serán las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica. Reconoce este Tribunal que se trata de un verdadero reto lograr la conservación y recuperación de las edificaciones de la Isla, así como su puesta en valor, incluidas –por ejemplo- las casas de madera ubicadas en el lugar conocido como “Las Jachas” y sus alrededores, la Enfermería, la Capilla, Edificio de Administración, y otra infraestructura necesaria para ofrecer servicios limitados del turismo de naturaleza y el eco-turismo, entre tanto, se responda a criterios de sustentabilidad, de lo contrario, conllevaría un roce de relevancia constitucional de los artículos 50 y 89.

En cuanto a los incisos a) y b) del numeral 5 deberán entenderse constitucionales en la medida en que lo pretendido en el Plan Maestro se ajuste a lo señalado por esta Sala, especialmente en el tanto los estudios de zonificación y reglamentos de zonificación no se encuentran fundados en una reducción del área silvestre protegida en el 5.5% del área” (El resaltado no es del original.)

El propio SINAC y el Ministerio de Cultura y Juventud ya habían establecido la necesidad de realizar ciertas intervenciones en la infraestructura de la Isla San Lucas, en el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas de 2020:

“2.1 Diagnóstico de recursos culturales El informe CICPC-DI-0126-2020 del Ministerio de Cultura y Juventud, señala que la zona del antiguo centro penal y todas sus edificaciones, deberá mantenerse, lo más intacta posible. Lo deseable es que se restaure el Antiguo Dispensario, para evitar que corra la misma suerte que las otras edificaciones de madera de la Isla, que se hagan intervenciones puntuales en el atracadero (que requiere reparación total de la losa, vigas, pruebas de análisis de soporte de las columnas, para determinar si es necesario reforzarlas. Cualquier otra intervención que se le haga al atracadero, deberá ser de carácter reversible y no dañar de ninguna manera las estructuras existentes. Es importante intervenir los bastiones del módulo de ingreso y del puente que los une, pues corre peligro de desplome, que se hagan pequeñas reparaciones en el pavimento empedrado de la "Calle de La Amargura" para evitar su degradación y eventual deterioro irreversible.

En la zona de mayor concentración de edificaciones históricas, recomendamos no hacer grandes modificaciones ni al paisaje ni a los edificios, únicamente las necesarias para evitar su desplome. En el caso de la Antigua Comandancia (lamentablemente desparecida a causa de un incendio) consideramos importante su reconstrucción, pues como centro neurálgico del antiguo penal, servía como eje focal y punto de referencia obligada en el conjunto. Además, afortunadamente existen planos detallados de cómo era, por otro lado, ese emplazamiento es ideal para una eventual área de acogida y recepción de visitantes, con las debidas comodidades y amenidades necesarias. Consideramos deseable su reconstrucción para evitar otra construcción nueva que altere el sitio y distraiga de la apreciación del conjunto, de la forma más cercana posible a la época anterior al incendio.

El área de celdas (cuyo reforzamiento estructural ya está a punto de iniciarse) deberá mantenerse en lo posible en el estado actual, haciendo únicamente las reparaciones necesarias para evitar su desaparición, pero no recomendamos hacer grandes obras de restauración o reconstrucción, pues esto implicaría la pérdida de su tejido histórico y sus valiosos murales, reflejo de un período importante de la historia del sitio.

En general se recomienda tomar acciones preventivas para evitar que desparezcan los vestigios aún existentes, pero no recomendamos emprender reconstrucciones de lo ya desaparecido y solicitamos no hacer nuevas construcciones en zonas inmediatas a los vestigios que aún se mantienen, para evitar un mayor deterioro.

Siendo que la Isla tiene una gran extensión, y la zona con declaratoria histórico arquitectónica es relativamente pequeña, por tanto, se recomienda, en lo posible alejar todas las nuevas construcciones de la zona histórica del antiguo penal y evitar alterar su paisaje inmediato (…)

4.9.2 Plan específico de infraestructura para la gestión Una gestión eficiente del ASP dependerá de que la misma cuente con todas las instalaciones físicas necesarias identificadas en el PGM y los diferentes planes específicos o programas de manejo. La infraestructura se refiere por ejemplo a instalaciones para la atención de visitantes, casa del personal, oficinas, puestos de vigilancia, senderos, rótulos, entre otros.

El objetivo principal será, “contar con la infraestructura óptima y debidamente equipada para la gestión del área” (SINAC, 2016).

Para su elaboración deberá aplicarse la "Guía Metodológica para la Elaboración de Planes Específicos de Infraestructura en Áreas Silvestres Protegidas del SINAC".

4.9.3 Plan específico de mantenimiento de equipo e infraestructura Promueve el establecimiento de un mantenimiento eficiente, regular y sistemático para el equipo y la infraestructura de las ASP como una herramienta que pueda garantizar el buen funcionamiento y la vida útil de acuerdo con las especificaciones de fabricación o de construcción según sea el caso, al igual que las revisiones periódicas del mismo para evaluar su estado.

Será necesario incluir el inventario de equipo y la infraestructura existente en el ASP, para lograr establecer el grado de implementación de las actividades dirigidas a su mantenimiento.

El objetivo principal será “el mantenimiento preventivo de la infraestructura y equipo del ASP, para que estos se mantengan en buenas condiciones y funcionalidad” (SINAC, 2016).” Si bien el artículo 3 cuestionado dispone que, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística, cuyas áreas están determinadas en el ordinal 6 de la misma normativa, también es cierto que, tal y como ya se expuso en el considerando V, el plan de manejo aprobado por el SINAC en el año 2020, ya contemplaba tales usos en esas áreas, según la clasificación de la zona en el apartado 4.7 (alta, mediana, baja o de mínima o nula intervención). Por ejemplo, en la zona de alta intervención se indica lo siguiente:

“…Esta zona la integra parte del área marina de la Bahía San Lucas; la Infraestructura del antiguo Presidio; Playa Cocos y Playa Tumbabotes; el Sendero a Playa Cocos, el Sendero a Playa Tumbabotes, el Sendero al Corral de Piedra, el Sendero a la Antigua Porqueriza, el Sendero a Playa El Inglés, el Sendero a Playa Hacienda vieja, el Sendero a Playa Bella vista, el Sendero a Punta de Oro (Punta El Coco), el Sendero Los Ceibos, el Sendero Mirador de Islas, el Sendero El Trogón; así como los dos sitios para infraestructura de Prevención, Protección y Control a ubicar en Tumbabote y Hacienda vieja. Así como los sitios de la parcela de Teca y la nueva casa de Guardaparques.

Esta zona abarca una extensión de 27 Ha., que corresponde al 6.1% del territorio del refugio.

En esta zona de manejo se permite:

* Actividades recreativas y turísticas: caminatas guiadas por senderos autorizados para la observación de flora, fauna y recursos históricos; la fotografía y video no comercial.

* La construcción de infraestructura para la atención de visitantes (por ejemplo, centros de visitantes, baterías sanitarias, senderos, miradores, plataformas, cafetería, tiendas de artesanía).

* La construcción de infraestructura para la administración del Refugio.

* La investigación científica y el monitoreo autorizado de acuerdo a la normativa vinculante.

* Se permite el manejo de especies de flora y fauna con objetivos de restauración biológica, basado en el conocimiento científico para el cumplimiento de los objetivos de conservación del ASP, previamente autorizado por el SINAC.

* Se permite la instalación de equipo y construcciones de interés científico o para la gestión del Refugio, previamente autorizado por el SINAC.

* Se permite la filmación y fotografía con fines científicos y de divulgación de los atributos y valores del ASP.

* En esta zona también se permite la instalación y operación de servicios no esenciales aprobados con base en la normativa vigente…” Y, en todo caso, igualmente la delimitación de la zona turística que se establezca en el Plan Maestro de la isla y los usos permitidos, deberán contar previamente con el aval de los órganos técnicos respectivos.

De modo que, los numerales 2, 3, 4, 6, 7 y 16 de la ley nro. 9892 no son inconstitucionales, pues toda actividad turística o en relación con la infraestructura, que sea autorizada en el plan maestro deberá estar sustentada en los criterios técnicos respectivos de los órganos competentes, según el párrafo final del artículo 9 de esta ley y, ajustarse a las condiciones supra señaladas en la sentencia nro. 2010-13099, según la cual, la infraestructura que se deberá construir será la estrictamente necesaria para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que ello implique que se pueda extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica.

IX. SOBRE EL CUESTIONAMIENTO DE LOS ACCIONANTES EN RELACIÓN CON LOS FINES COMERCIALES DE LA LEY IMPUGNADA

Los accionantes consideran que la ley impugnada es inconstitucional, por cuanto autoriza que en el área turística se desarrollen fines comerciales, lo cual es incompatible con los ordinales 8.15 y 12 de la Ley del Servicio de Parques Nacionales y con el artículo III de la “Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de américa”.

La ley en cuestión, en el artículo 9, ciertamente señala dentro de las atribuciones de la Junta Directiva del Parque Nacional Isla San Lucas el “[d]efinir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla”. Sin embargo, lo de actividades “comerciales” debe ser comprendido en el contexto de toda ley y no de forma separada, pues la ley en cuestión no hace alusión a fines comerciales en sentido amplio, ni innova en tal campo. Tal como ya se evidenció supra, el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas, ya preveía, según la normativa anterior a la ley impugnada, los fines turísticos de una parte de la zona de la isla, acompañada de la prestación de servicios esenciales y no esenciales. En esta zona, la ley nro. 5469 vigente para el momento en que se aprobó la ley impugnada, ya autorizaba a la Municipalidad de Puntarenas a utilizar la Isla como un centro turístico, para lo cual se le había autorizado a contratar las obras de infraestructura necesarias, podía explotarla por sí misma o por licitación pública y se autorizó el funcionamiento de hoteles y todas aquellas actividades que fueran propias de una explotación turística bien organizada.

La ley impugnada, contrario a ello, impide expresamente servicios de hospedaje en la isla, y deroga en el artículo 20, precisamente los artículos 2 al 8 de la ley nro. 5469 que autoriza lo anterior. De modo que, se reitera, la ley impugnada, lejos de innovar y autorizar cualquier obra ligada al turismo como el comercio, según manifiestan los accionantes, refuerza mediante ley, y no por decreto, como lo hizo posteriormente el decreto ejecutivo nro. 34282-TUR-MINAE-C a la ley nro. 5469, la delimitación de las obras y usos que pueden ser autorizados en esta isla ligándolos específicamente a un uso ambientalmente sostenible. Veamos lo que dice el artículo 5 de ese decreto ejecutivo nro. 34282-TUR-MINAE-C, vigente al momento de aprobarse la ley nro. 9892:

“Artículo 5º-Para el desarrollo de actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, el ICT elaborará un Plan Maestro de Desarrollo Turístico Sostenible, que comprenderá un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural esa área específica. El Plan Maestro de Desarrollo Turístico Sostenible contendrá al menos los siguientes elementos:

• a)Estudio de zonificación, por el que se definen los usos de suelo.
• b)Reglamento de zonificación (ordenanzas y reglamentos) que define y establece los criterios y normas sobre uso del suelo, construcción y uso de edificaciones, facilidades, servicios públicos, áreas de amortiguamiento, entre otros, necesarios para el desarrollo turístico limitado y sostenible y para la protección del patrimonio cultural de la Isla.
• c)Plan de estrategias para la ejecución del proyecto, que establece los programas, proyectos y actividades, tanto por la iniciativa privada como por la inversión pública en aras del desarrollo sostenible y de protección del patrimonio cultural.

El Plan Maestro de Desarrollo Turístico Sostenible se someterá a la Secretaría Técnica Nacional Ambiental del Minae y al Ministerio de Cultura, Juventud y Deportes para su aprobación, de conformidad con los requisitos y procedimientos establecidos por el ordenamiento jurídico.

El área de administración municipal será regulada por el citado Plan Maestro de Desarrollo Turístico Sostenible y no le será aplicable el Plan de Manejo del Refugio, salvo las reglas legales generales pertinentes. El MINAE ajustará su Plan de Manejo conforme a las nuevas dimensiones del refugio y al Plan Maestro de Desarrollo Turístico Sostenible.” En este caso, la ley no solo separa claramente las áreas que tendrán una protección mayor ambiental a la que actualmente tiene, conforme los criterios técnicos previos establecidos en el Plan de Manejo de 2020 realizado por el SINAC, sino que sujeta la actividad turística y todo lo relativo a esta, a la existencia de un plan maestro que debe aprobarse con estudios técnicos, donde se definirá cuáles son esos servicios, entre ellos, el comercio requerido solo para esos efectos. De manera que no existe violación de los principios en materia ambiental, pues todo lo que se llegue a disponer debe estar respaldado previamente por el criterio técnico respectivo.

No procede descontextualizar el concepto de comercio del resto del contenido de la ley como lo hacen los accionantes, pues ese concepto está sujeto estrictamente al fin de la ley 9892, de manera que se trata únicamente de aquel comercio que sea necesario para el desarrollo turístico limitado y sostenible y para la protección del patrimonio cultural de la isla que, incluso ya existe en algunos de nuestros parques nacionales (servicios sanitarios, cafeterías, venta de artesanías, por ejemplo). Así lo delimita el resto del articulado de la ley impugnada:

“ARTÍCULO 7-Alcances y restricciones. El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos.

Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar.

En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones.

Cualquier conflicto de competencias será dirimido por el ministro o la ministra de Ambiente y Energía.” “ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones:

… d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla…

… En materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible.” Como ya se indicó anteriormente, este Tribunal, en la sentencia nro. 2010-13099, había avalado la prestación de determinados servicios no esenciales, bajo determinadas condiciones:

“…Además de lo anterior, la Isla San Lucas tiene una finalidad de ser utilizada como centro turístico con beneficios financieros para diversas instituciones de bien social.

El desarrollo de la infraestructura debe ser compatible con los principios de sustentabilidad ambiental, su protección y conservación, por el contrario serían cuestionables constitucionalmente sí se realizaran obras que no tuvieran en cuenta los regímenes de protección vigentes en la Isla, como la construcción de obras de infraestructura de gran envergadura, dado que la vigencia del régimen como área protegida implicaría un cambio sustancial al uso de suelo, y no por las obras humanas que existieron mucho antes de la declaratoria de la Isla como Área Silvestre Protegida y de patrimonio histórico-arquitectónico. De ahí que, no estima la Sala que los artículos 2, 3, 4, 6 y 7 del Decreto Ejecutivo 34282-TUR-MINAET-C presenten vicios de constitucionalidad, pero entendido con los siguientes matices. La declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible, que señala el numeral 2, deberá entenderse constitucional mientras que la conservación y restauración de las edificaciones del antiguo penal y aquellas que fueron construidas con ocasión de su existencia, queden circunscritas a las labores de conservación, protección y mejoramiento de su entorno.

Lo mismo debe ocurrir con los sitios arqueológicos y el cementerio ubicado en Playa Cocos, sin perjuicio, claro está, de los estudios arqueológicos y científicos que deberán ser objeto. En cuanto a la infraestructura destinada para el uso del turista, ésta deberá estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos y a ésta, las instalaciones que se deberán construir serán las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica. Reconoce este Tribunal que se trata de un verdadero reto lograr la conservación y recuperación de las edificaciones de la Isla, así como su puesta en valor, incluidas –por ejemplo- las casas de madera ubicadas en el lugar conocido como “Las Jachas” y sus alrededores, la Enfermería, la Capilla, Edificio de Administración, y otra infraestructura necesaria para ofrecer servicios limitados del turismo de naturaleza y el eco-turismo, entre tanto, se responda a criterios de sustentabilidad, de lo contrario, conllevaría un roce de relevancia constitucional de los artículos 50 y 89.

En cuanto a los incisos a) y b) del numeral 5 deberán entenderse constitucionales en la medida en que lo pretendido en el Plan Maestro se ajuste a lo señalado por esta Sala, especialmente en el tanto los estudios de zonificación y reglamentos de zonificación no se encuentran fundados en una reducción del área silvestre protegida en el 5.5% del área.” En virtud de lo expuesto, se descartan las violaciones acusadas por los accionantes en este sentido.

X.- - SOBRE LA ACUSADA INCONSTITUCIONALIDAD DE LA LEY NRO. 9892, RESPECTO A LA INTEGRACIÓN DE LA JUNTA DIRECTIVA QUE ADMINISTRA EL PARQUE NACIONAL ISLA SAN LUCAS.

En criterio de los accionantes, el artículo 10 de la ley nro. 9892, es inconstitucional, dado que, en cuanto a la integración de la Junta Directiva que administra el Parque Nacional, la norma cuestionada no dispone la presencia de los órganos técnicos, de forma vinculante.

Desde la sentencia nro. 2010-13099, este Tribunal advirtió que, si los órganos y entes públicos deben llenar fines constitucionales (artículos 50 y 89) con fundamento en el grado de especialización de funciones, su coordinación debe ser un aspecto prioritario para la solución de los problemas que surgen en el ejercicio de sus respectivas competencias, como puede ser en este caso el Ministerio de Ambiente, Energía y Telecomunicaciones en cuanto regenta el patrimonio natural, el Ministerio de Juventud, Cultura y Deportes en lo relacionado a las políticas de conservación del patrimonio histórico-patrimonial, el Instituto Costarricense de Turismo en la habilitación y conservación de sitios históricos y de belleza natural para el turismo, y la Municipalidad de Puntarenas al velar por los intereses locales de su comunidad. De conformidad con el numeral 8 de la ley nro. 9892, la Junta Directiva del Parque Nacional Isla San Lucas es un órgano de desconcentración máxima, adscrito al Ministerio de Ambiente y Energía, que cuenta con personalidad jurídica instrumental para ejercer el gobierno y la administración del parque. En criterio de los accionantes, la integración de esa Junta carece de una integración técnica que garantice la aprobación de sus decisiones. Veamos:

“ARTÍCULO 10-Integración. La Junta Directiva del Parque Nacional Isla San Lucas estará integrada por los siguientes miembros:

• a)La ministra o el ministro de Ambiente y Energía, quien lo presidirá, pudiendo actuar como suplente un viceministro o viceministra de la cartera.
• b)La ministra o el ministro de Cultura, pudiendo actuar como suplente un viceministro o viceministra de la cartera.
• c)La Presidencia Ejecutiva del Instituto Costarricense de Turismo (ICT), pudiendo actuar como suplente la persona que ostenta la gerencia o un integrante de la Junta Directiva de dicho instituto.
• d)Una persona representante del Poder Ejecutivo designada por el Consejo de Gobierno, órgano que nombrará, además, a una persona suplente.
• e)La alcaldesa o el alcalde de la Municipalidad del cantón Central de Puntarenas, pudiendo actuar como suplente una vicealcaldía.
• f)La presidenta o el presidente de la Cámara de Turismo de Puntarenas, pudiendo actuar como suplente alguno de los integrantes de la Junta Directiva de dicha cámara.

El presidente o la presidenta de la Junta ostentará la representación judicial y extrajudicial del órgano. Asimismo, contará con voto de calidad en los términos del artículo 49 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. Los integrantes de la Junta Directiva no devengarán ninguna dieta”.

Según lo transcrito, en esa Junta están representadas las autoridades superiores de cada ministerio y del municipio interesado. Lo anterior es relevante, dadas las características particulares de esta isla, en la que confluyen tres intereses de protección constitucional y convencional, como son el ambiente, el patrimonio cultural y el turismo de bajo impacto. Sin duda alguna, estamos ante un órgano con una naturaleza especial, en el que deben estar representados todos los sectores involucrados y en el que, el sustento técnico es de suma relevancia cuando se deban adoptar decisiones en esas tres materias interrelacionadas entre sí, en este caso en particular. En atención a ello, precisamente la ley en cuestión dispone lo siguiente:

“ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones:

• a)Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque.
• b)Contribuir con la protección y conservación ambiental del parque nacional.
• c)Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos.
• d)Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla.
• e)Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país.
• f)Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.

En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura.

• g)Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes.
• h)Aprobar la estructura administrativa que se requiera para la gestión institucional del parque.
• i)Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra.
• j)Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro.
• k)Llevar a cabo cualquier otro tipo de actuación necesaria para asegurar la buena marcha del Parque Nacional Isla San Lucas y la consecución de sus fines.

En materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible” (la negrita fue incorporada).

“ARTÍCULO 11- Duración y organización. Las seis personas integrantes de la Junta Directiva del Parque Nacional Isla San Lucas permanecerán en sus puestos mientras ostenten el cargo que los legitima como integrantes y, en el caso de la representación del Poder Ejecutivo, mientras no sea removida por el Consejo de Gobierno.

La Junta Directiva del parque podrá sesionar válidamente con la integración de las personas suplentes, incluso en el supuesto de que el cargo titular principal se encuentre vacante.

En lo no regulado en la presente ley, la Junta Directiva se regirá en su estructura, organización y funcionamiento por la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978.” (la negrita fue incorporada).

“ARTÍCULO 12- Sesiones. La Junta Directiva sesionará de forma ordinaria al menos una vez al mes y, de forma extraordinaria, cuando se requiera; en cuyo caso, la Presidencia hará la convocatoria.

Todas las sesiones de la Junta Directiva deberán ser documentadas formalmente.

La Junta Directiva podrá invitar a sus sesiones al personal técnico y a otras personas que requiera para la toma de acuerdos.” (la negrita fue incorporada).

A partir de lo anterior, se advierte que la ley refuerza que las decisiones de esa Junta en materia de conservación y preservación del patrimonio histórico-arquitectónico y de protección de la vida silvestre y conservación de la biodiversidad de la isla, deben adoptarse basadas en criterios técnicos. Para ello, el ordinal 12 supra citado, refiere que el personal técnico puede ser invitado a las sesiones y el artículo 9 dispone que los criterios que emita el Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y el SINAC, en su respectiva materia, prevalecerán. Ahora bien, según refieren los accionantes, es facultativo para la Junta solicitar tal criterio técnico, lo que podría poner en riesgo la tutela del ambiente, en aquellos casos en que no lo soliciten. Al respecto resulta de relevancia indicar lo que este Tribunal, en sentencia nro. 2022-25307, de las 13:40 horas del 25 de octubre de 2022, resolvió de forma unánime sobre este punto en particular:

“…es criterio de la Sala, que existe una libre configuración del legislador en la creación y asignación de competencias administrativas. Esto supone una discrecionalidad en la definición de instancias administrativas encargadas de realizar determinada función en relación con una materia en particular. Así, la sola asignación de una competencia concreta a una instancia diversa, en sí mismo, no supone un quebranto de orden constitucional. Empero, tratándose del derecho de tutela al ambiente, como consecuencia de los principios preventivo y precautorio, es necesario que una competencia de orden técnico o científico, direccionada a establecer la viabilidad ambiental o bien, el impacto de determinada actividad o proyecto en el ambiente, o en general, definir el tipo de herramienta técnico-científica para ponderar esas incidencias en el medio y los ecosistemas, se asigne a una instancia de naturaleza técnica y no de orden eminentemente político.

Lo anterior ya que la ponderación y análisis de tal materia exige e impone que sean consideraciones de orden técnico las que sustenten la habilitación o denegatoria de dicha viabilidad. Si bien las instancias políticas podrían establecer pautas programáticas en torno a dicha materia, en definitiva, la aplicación concreta de la variable científica y técnica conlleva a dicha orientación funcional…” Este Tribunal considera que, si el legislador le dio carácter vinculante al criterio técnico de esos órganos técnicos ha de entenderse que pretendía que el aporte de ambos, en sus respectivas competencias, fuera solicitado siempre por parte de la respectiva Junta. De lo contrario, si ello no fuera obligatorio, habría un grave riesgo de que la finalidad de tal disposición no fuera alcanzada. Así las cosas, y ante la eventual circunstancia de que tal disposición pueda ser interpretada en el sentido señalado por los accionantes y que se adopten decisiones sin estar sustentadas en los criterios especializados que pudiesen dañar al ambiente o al patrimonio histórico cultural, al tratarse de una zona especialmente protegida, este Tribunal, en atención al principio precautorio que rige en estas materias, establece que no es inconstitucional la integración de la Junta Directiva que se regula en el numeral 9, siempre y cuando se interprete el último párrafo del citado artículo, en el sentido de que tal criterio no resulta facultativo para la Junta Directiva, sino exigible en todo momento para sustentar las decisiones que adopte, en relación con la conservación y preservación del patrimonio histórico-arquitectónico y la protección de la vida silvestre y conservación de la biodiversidad de la isla, o que puedan incidir en estas materias, los cuales deberán ser atendidos por esos órganos, de la forma más expedita posible; y serán de acatamiento obligatorio para la Junta.

Nótese que el último párrafo del artículo 9 de reciente cita, es categórico en cuanto al carácter que revisten estos informes técnicos, al determinar que en lo concerniente a la conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultura del Ministerio de Cultura, mientras que en lo atinente a la protección de la vida silvestre y conservación de la biodiversidad, prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación, con lo cual, claramente, estos criterios técnicos no podrán ser obviados por la Junta Directiva, sino que, necesariamente, deberán estarse a lo que se indique en estos sobre las materias señaladas.

XI. SOBRE LA ALEGADA INCONSTITUCIONALIDAD DE LA LEY NRO

9892, EN CUANTO AL OTORGAMIENTO DE CONCESIONES.

En criterio de los accionantes, la ley impugnada es contraria al numeral 8 inciso 15 de la Ley del Servicio de Parques Nacionales, en relación con el ordinal 12 eiusdem, toda vez que, en los parques nacionales está prohibido otorgar concesiones fuera de las instalaciones para el servicio del propio parque y solo se permite hacer ecoturismo, investigación, talleres y eventualmente hacer aprovechamiento del recurso hídrico, pero sin fines comerciales en muelles, atracaderos y otros.

Sobre este agravio, la Sala aprecia que la ley nro. 9892 establece:

“ARTÍCULO 7- Alcances y restricciones. El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos.

Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar.

En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones.

Cualquier conflicto de competencias será dirimido por el ministro o la ministra de Ambiente y Energía (…)

ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones: (…)

• f)Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística (…)
• j)Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro (…)

ARTÍCULO 17- Financiamiento. El Parque Nacional Isla San Lucas dispondrá de recursos financieros que le permitan ejercer sus mandatos con agilidad y eficiencia. Estos incluirán los recursos que le correspondan por ley del Sistema Nacional de Áreas de Conservación (Sinac), transferencias de los presupuestos de la República o donaciones de cualquier persona física o jurídica, así como los fondos propios que genere el ingreso al parque, la utilización de sus servicios, los cánones por concesiones y permisos y, en general, por el pago de las actividades realizadas dentro del parque.

Los recursos regulados en la presente ley así como todos aquellos que produzca el parque, necesaria y exclusivamente serán invertidos en el mismo parque nacional.

La fiscalización estará a cargo de la Contraloría General de la República (…)”.

Por su parte, la Ley de Biodiversidad determina el tipo de concesión de servicios y actividades no esenciales que pueden otorgarse dentro de las áreas silvestres protegidas.

“ARTÍCULO 39- Concesiones y contratos. Se autoriza al Consejo Nacional de Áreas de Conservación para que apruebe los contratos y las concesiones de servicios y actividades no esenciales dentro de las áreas silvestres protegidas estatales, excepto el ejercicio de las responsabilidades que esta y otras leyes le encomiendan, exclusivamente, al Poder Ejecutivo por medio del Ministerio de Ambiente y Energía (Minae), tales como la protección y vigilancia, la definición, el seguimiento de estrategias, los planes y los presupuestos de las áreas de conservación. Estas concesiones y contratos en ningún caso podrán comprender la autorización del acceso a elementos de la biodiversidad en favor de terceros o la explotación de recursos naturales; tampoco la construcción de edificaciones privadas.

Los servicios y las actividades no esenciales serán: los estacionamientos, los servicios sanitarios, la administración de instalaciones físicas, los servicios de alimentación, las tiendas, la construcción y la administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación, mediante un estudio técnico que lo justifique.

Estas concesiones y contratos podrán otorgarse única y exclusivamente a asociaciones de desarrollo comunal, cooperativas, microempresas inscritas en el Ministerio de Economía, Industria y Comercio (MEIC) u organizaciones sociales nacionales sin fines de lucro que tengan objetivos de apoyo a la conservación de los recursos naturales, que incorporen la gestión ambiental dentro de los procesos y área concesionada y con su personería jurídica vigente, siempre que se encuentren integradas y controladas directamente por habitantes de las comunidades ubicadas en la zona de influencia de la respectiva área silvestre protegida.

Las áreas de conservación deberán brindar amplia información a estas comunidades sobre los servicios que decidan dar en concesión y establecer un registro de las organizaciones locales a efectos de garantizar la mayor participación posible en los procesos de contratación.

El Instituto Nacional de Aprendizaje (INA), en coordinación con otras entidades educativas públicas y las municipalidades respectivas, creará programas de capacitación e instrucción técnica orientados prioritariamente a las comunidades ubicadas en la zona de influencia de las áreas silvestres protegidas, a fin de que puedan aprovechar los beneficios de esta disposición.

Los concesionarios o permisionarios deberán presentar auditorías externas satisfactorias, realizadas en el último año; todo a juicio del Consejo Regional del Área de Conservación.

(Así reformado por el artículo único de la ley N° 9766 del 29 de octubre de 2019)

(Nota de Sinalevi: Mediante el artículo único de la ley N° 10133 del 14 de marzo de 2022, se interpretó auténticamente este numeral en el sentido de que: “…las concesiones y contrataciones públicas autorizadas, a las que se refiere, podrán otorgarse también a las Juntas de Educación y Juntas Administrativas de Centros Educativos Públicos y la Cruz Roja Costarricense, considerando que se trata de organizaciones locales.”)

ARTÍCULO 39 BIS- Modalidades contractuales. Para el otorgamiento de concesiones y contrataciones de servicios y actividades no esenciales, dentro de las áreas silvestres protegidas, la Administración utilizará las modalidades contractuales que mejor satisfagan el interés público, siguiendo los procedimientos ordinarios, extraordinarios y especiales establecidos en la ley.

ARTÍCULO 40.- Adecuación a planes y estrategias Las concesiones y los contratos autorizados en el artículo anterior deberán basarse en las estrategias y los planes aprobados en primera instancia por el Consejo Regional y en forma definitiva por el Consejo Nacional de Áreas de Conservación, conforme a las leyes y políticas establecidas. La formulación de estrategias y planes de las áreas protegidas, en ningún caso se verá afectada por consideraciones que no sean estrictamente técnicas” (la negrita fue suplida).

En relación con la normativa citada, cabe traer a colación la supramencionada sentencia nro. 2006-9563 de las 16:06 horas del 5 de julio de 2006:

“IX.- Se cuestiona también la constitucionalidad del artículo 39 de la Ley en cuestión, en tanto se autoriza al Consejo Nacional de Áreas de Conservación para aprobar contratos y concesiones, lo cual señala el accionante es una potestad exclusiva del Presidente y el Ministro respectivo. El artículo impugnado dispone:

"Artículo 39.- Autorizase al Consejo Nacional de Áreas de Conservación para aprobar los contratos y las concesiones de servicios y actividades no esenciales dentro de las áreas silvestres protegidas estatales, excepto el ejercicio de las responsabilidades que esta y otras leyes le encomienden, exclusivamente al Poder Ejecutivo por medio del Ministerio de Ambiente y Energía, tales como la definición, el seguimiento de estrategias, los planes y los presupuestos de las Áreas de Conservación. Estas concesiones y contratos en ningún caso podrán comprender la autorización del acceso a los elementos de la biodiversidad a favor de terceros; tampoco la construcción de edificaciones privadas.

Los servicios y las actividades no esenciales serán: los estacionamientos, los servicios sanitarios, la administración de instalaciones físicas, los servicios de alimentación, las tiendas, la construcción y la administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación.

Estas concesiones o los contratos podrán otorgarse a personas jurídicas, con su personería jurídica vigente, que sean organizaciones sin fines de lucro y tengan objetivos de apoyo a la conservación de los recursos naturales; se les dará prioridad a las organizaciones regionales.

Los concesionarios o permisionarios deberán presentar auditorías externas satisfactorias, realizadas en el último año; todo a juicio del Consejo Regional del Área de Conservación." Según se indicó anteriormente, el Consejo Nacional está adscrito al Sistema Nacional de Áreas de Conservación, órgano persona que cuenta con personalidad jurídica instrumental y presupuesto, precisamente por las razones de rapidez y celeridad administrativa que como ya se indicó, requiere para el cumplimiento de sus fines. De manera que, también necesitan contratar ágilmente recursos materiales y humanos para cumplir eficientemente sus competencias. Esta capacidad de contratar fue reconocida por la Sala en la sentencia No. 2005-3629:

"…De lo anteriormente expuesto, es claro que este Tribunal ya se había pronunciado respecto a los alegatos del accionante y que en aquella oportunidad, cuyo criterio aún sostiene, determinó que no es inconstitucional que al Consejo Técnico de Aviación Civil se le otorgue una personería jurídica instrumental a través de la cual pueda administrar fondos y consecuentemente contratar, en los términos y delimitaciones que este Tribunal indicó. La titularidad de un patrimonio implica autonomía patrimonial y, consecuentemente, de gestión para llevar a cabo en forma más eficiente la función pública que está llamado a desempeñar. Desconocer su capacidad para contratar como pretende el accionante, sería irrazonable, pues carecería de todo sentido la obtención de fondos sin la posibilidad de administrarlos, lo cual implica necesariamente la capacidad de contratar. Con la autonomía patrimonial, el ente podrá realizar los actos y contratos necesarios que impliquen la gestión de dicho patrimonio con las delimitaciones legales y constitucionales ya establecidas, pues por la naturaleza de algunas contrataciones, éstas estarán reservadas al Presidente y Ministro respectivo, ya que se trata de una contratación meramente instrumental y no esencial.

La contratación administrativa del Estado no puede concebirse actualmente, entendiendo que toda contratación con el fin de cumplir la gestión pública sea formalizada por el Presidente y el Ministro respectivo como pretende el accionante, pues ello implicaría una paralización administrativa, atendiendo al crecimiento del sector público y a las necesidades de los administrados. Sobre este aspecto, la Sala en sentencia No. 2660-01 manifestándose respecto a la rigurosidad formal de la contratación administrativa señaló:

"A juicio de esta Sala, existen una serie de elementos que no pueden dejarse de lado en el análisis de la validez constitucional de las normas cuestionadas. En primer término, no puede partirse de un análisis simplista o formal, pues la contratación administrativa es una materia sumamente compleja que se desenvuelve en un entorno de cambios constantes, muchas veces con un ritmo vertiginoso. En efecto, el proceso de adquisición de bienes y servicios está inmerso y a la vez determinado por las condiciones y reglas del mercado, cuyas variables difícilmente pueden aprehenderse en la rigidez de una norma. Por esa razón, y tomando en cuenta que, como bien señaló la Procuraduría, los procedimientos de contratación tienen un carácter instrumental de frente a la satisfacción de los intereses públicos, nunca podrían verse convertidos en un fin en sí mismo, sino que deben conservar su naturaleza de simples medios para la consecución del fin superior.

Bajo este razonamiento, cabe preguntarse entonces si es factible prever en un cuerpo normativo todos los posible motivos (sic) de excepción que en determinado momento pudieran requerir de un procedimiento como la contratación directa. La función de un tribunal constitucional, al que se le encomienda la labor de descubrir, aclarar y declarar el significado del ordenamiento primario del Estado, no puede desentenderse del entorno, y, en este caso, de las realidades y problemas que puede enfrentar el Estado en su actividad contractual. Esa perspectiva, claro está, debe guardar en justo equilibrio con la preservación y defensa de la supremacía Constitucional. De ahí que en esta difícil tarea de extraer el sentido lógico y espíritu de las normas constitucionales, éstas deben ser situadas en su contexto, pues de otra forma podrían llegar a convertirse en disposiciones de un carácter muy limitado o inoperante, de poca actualidad y que puede incluso llegar a impedir la satisfacción del interés público que debe perseguir el Estado." La ley ha tenido que ir desplegando mecanismos que han establecido mayor agilidad en la contratación, tal es el caso de la Ley de Administración Financiera de la República, la Ley de Contratación Administrativa y su reglamento. La Ley de Administración Financiera y presupuestos públicos, que por ejemplo, dispone en el artículo 106:

"Los jerarcas de los órganos o entes del sector público podrán delegar la suscripción de los contratos asociados al proceso de contratación, de conformidad con la reglamentación que se establezca para el efecto." Por supuesto, entendiendo que dicha contratación se trata de una actividad instrumental. En el caso del Consejo Técnico de Aviación Civil, esa capacidad contractual es de orden instrumental y está sujeta al ordenamiento jurídico, por ende también a la fiscalización de la Contraloría General de la República." En este caso, la misma norma delimita los contratos y concesiones que podrá aprobar el Consejo Nacional de Áreas de Conservación, a aquellos servicios y actividades que no sean esenciales: estacionamientos, servicios sanitarios, la administración de instalaciones físicas, los servicios de alimentación, las tiendas, la construcción y la administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación.

Incluso el artículo indica que de dicha potestad de contratación están excluidas aquellas materias que impliquen el ejercicio de las responsabilidades que esta y otras leyes, le encomienden exclusivamente, al Poder Ejecutivo por medio del Ministerio de Ambiente y Energía, tales como la definición, el seguimiento de estrategias, los planes y los presupuestos de las Áreas de Conservación. En consecuencia, no se constata la violación constitucional acusada” (el énfasis fue incorporado).

Adicionalmente, apréciese que el SINAC emitió en febrero de 2021 “El ABC de los servicios y actividades no esenciales en las áreas silvestres protegidas”, en el que detalló:

“Los servicios y actividades no esenciales (SANE) son aquellas actividades, tal como servicios de guiado, servicios de alimentación, administración de la visitación en Áreas Silvestres Protegidas, que la legislación nacional habilita para que sean administrados por terceros bajo contratos o concesiones, es decir un mecanismo para propiciar Alianzas Público Privadas (APP) entre el Poder Ejecutivo y la sociedad civil. Las SANE ofrecen posibilidades para que las comunidades en la zona de influencia de las Áreas Silvestres Protegidas puedan beneficiarse de actividades económicas directamente potenciadas por el establecimiento y de las Áreas Silvestres Protegidas, como también una efectiva forma de generar empleos sostenibles en zonas rurales que a su vez coincididen (sic) en muchas regiones con zonas con los índices de desarrollo más bajos del País (…)

Previo a iniciar con un proceso de contratación de servicios y actividades no esenciales, el área silvestre protegida deberá contar con un instrumento técnico debidamente oficializado, que podrá ser el plan general de manejo, plan de turismo sostenible, o cualquier otro instrumento técnico que contemple la necesidad de otorgar en contratación los servicios y actividades no esenciales identificados (…)

El Estudio Técnico es el análisis requerido para justificar técnicamente los servicios y actividades no esenciales que defina el CORAC, y que no están establecidos en el artículo 39 de la Ley de Biodiversidad. También, permite justificar técnicamente la factibilidad del servicio y actividad no esencial a dar en contratación dentro del ASP. Deberá responder a las interrogantes: ¿qué? ¿cuándo? ¿cuánto? ¿dónde? ¿cómo? ¿con qué? y ¿con quién? (…)

Objetivos Específicos de los Servicios y Actividades No Esenciales 1. Fortalecer la conservación de las ASP. Deberán contribuir al objetivo de creación de las ASP, aplicando buenas prácticas y promoviendo la distribución equitativa de los beneficios generados.

2. Mejorar la gestión y la calidad del turismo en las ASP. Se mejorará y diversificará la calidad de la experiencia a los visitantes.

3. Fortalecimiento institucional. Permitirán que los funcionarios del SINAC atiendan las acciones esenciales del área silvestre protegida; así como también, mejorar la generación de ingresos para el Sistema, optimizando los recursos de la institución y mejorar las condiciones de los funcionarios.

4. Contribuir al desarrollo local. Promoverán el fortalecimiento local a través de la distribución equitativa de beneficios en las comunidades ubicadas en la zona de influencia del área silvestre protegida; así como también, contribuir con el fortalecimiento de sus capacidades (…)

Ventajas que conlleva otorgar Servicios y Actividades No Esenciales dentro de las Áreas Silvestres Protegidas del SINAC •Permite al SINAC concentrarse en labores esenciales de conservación y uso sostenible de las ASP.

•Permite la participación pública de las comunidades ubicadas en la zona de influencia de las ASP, en su gestión y en la distribución de sus beneficios.

•Generar recursos financieros importantes para la protección y desarrollo de las ASP.

•Mejorar la gestión operativa, administrativa y financiera de las ASP.

•Mejorar la experiencia de la visita dentro de las ASP estatales”.

En suma, los numerales 39, 39 bis y 40 de la Ley de Biodiversidad estatuyen que:

• i)El Consejo Nacional de Áreas de Conservación puede autorizar concesiones, así como las modalidades contractuales que mejor satisfagan el servicio público para la prestación de servicios y actividades no esenciales dentro de las áreas silvestres protegidas, con excepción del ejercicio de responsabilidades que por ley le competen, como la protección y vigilancia, la definición, el seguimiento de estrategias, los planes y los presupuestos de las áreas de conservación.
• ii)Las concesiones y contratos otorgados para la prestación de servicios y actividades no esenciales en las áreas de conservación no conllevan autorización alguna a favor de terceros i) de acceso a elementos de biodiversidad; ii) de explotación de recursos naturales; ni iii) de construcción de edificaciones privadas.
• iii)Los servicios y actividades no esenciales son:

Los estacionamientos, los servicios sanitarios, la administración de instalaciones físicas, los servicios de alimentación, las tiendas, la construcción y la administración de senderos y de la visita.

Aquellos que sean definidos por el Consejo Regional del Área de Conservación, por medio de un estudio técnico.

• iv)El otorgamiento de los contratos y concesiones de servicios no esenciales solo pueden darse a:

Asociaciones de desarrollo comunal.

Cooperativas.

Microempresas inscritas en el Ministerio de Economía, Industria y Comercio.

Organizaciones sociales nacionales sin fines de lucro que tengan objetivos de apoyo a la conservación de los recursos naturales, que incorporen la gestión ambiental dentro de los procesos y área concesionada y con su personería jurídica vigente, siempre que se encuentren integradas y controladas directamente por habitantes de las comunidades ubicadas en la zona de influencia de la respectiva área silvestre protegida.

• v)Las áreas de conservación tienen la obligación de:

Informar a las comunidades sobre los servicios no esenciales que se darán en concesión.

Establecer un registro de las organizaciones locales para promover la mayor participación posible en los procesos de contratación.

• vi)El Instituto Nacional de Aprendizaje, en coordinación con otras entidades educativas públicas y municipalidades, creará programas de capacitación e instrucción técnica orientados prioritariamente a las comunidades ubicadas en la zona de influencia de las áreas silvestres protegidas, a fin de que puedan aprovechar los beneficios de esta disposición.
• vii)Los concesionarios o permisionarios de servicios no esenciales en áreas silvestres protegidas deben aportar auditorías externar satisfactorias realizadas en el último año, según lo indicado por el Consejo Regional del Área de Conservación.
• viii)Las concesiones y contratos de servicios públicos no esenciales en áreas silvestres protegidas deben fundamentarse en estrategias y planes estrictamente técnicos aprobados inicialmente por el Consejo Regional del Área de Conservación y, en forma definitiva, por el Consejo Nacional de Áreas de Conservación.

De otro lado, en la Ley Forestal se establecen una serie de actividades que se autorizan para realizarse en el patrimonio natural del Estado:

“Artículo 18- Autorización de labores. En el patrimonio natural, el Estado podrá realizar o autorizar labores de investigación, capacitación y ecoturismo, así como actividades necesarias para el aprovechamiento de agua para consumo humano, de conformidad con el artículo 18 bis de esta ley, una vez aprobadas por el ministro de Ambiente y Energía, quien definirá, cuando corresponda, la realización de evaluaciones del impacto ambiental, según lo establezca el reglamento de esta ley.

Artículo 18 bis Aprovechamiento de agua para abastecimiento de poblaciones. El Ministerio de Ambiente y Energía (Minae) podrá autorizar el aprovechamiento de agua proveniente de fuentes superficiales y la construcción, la operación, el mantenimiento y las mejoras de sistemas de abastecimiento de agua, en inmuebles que integran el patrimonio natural del Estado, previa declaración, por el Poder Ejecutivo, de interés público, en específico para un abastecimiento poblacional imperioso y a favor de los entes autorizados prestadores de servicio público, que a continuación se detallan:

• a)El Instituto Costarricense de Acueductos y Alcantarillados (ICAA).
• b)Las municipalidades que aún prestan el servicio público de agua potable por la Ley N.º 1634, Ley General de Agua, de 18 de setiembre de 1953.
• c)La Empresa de Servicios Públicos de Heredia (ESPH).
• d)Las Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados (Asadas), entidades conformadas por usuarios, debidamente constituidas para ese fin e inscritas con ajuste a la Ley N.º 218, Ley de Asociaciones, de 8 de agosto de 1939, pueden administrar y operar el sistema de acueducto de su comunidad mediante un convenio de delegación suscrito con el ICAA.

Todas las obras o actividades necesarias para el cumplimiento de los fines aquí establecidos deberán ser ejecutadas con base en estudios técnicos, procurando el menor impacto ambiental posible según el instrumento de evaluación de impacto ambiental que corresponda y en estricto cumplimiento de la normativa ambiental vigente, en especial lo dispuesto sobre los criterios técnicos aplicables para la intervención de áreas silvestres protegidas contemplados en la Ley N.º 7788, Ley de Biodiversidad, de 30 de abril de 1998, y sus reglamentos.

En el caso de áreas silvestres protegidas de protección absoluta, sea parques nacionales y reservas biológicas, además deberá cumplirse con lo dispuesto en el artículo 38 de la Ley N.º 7554, Ley Orgánica del Ambiente, de 4 de octubre de 1995. Asimismo, los estudios técnicos que se realicen deberán demostrar que no existe otra fuente alternativa disponible para garantizar el abastecimiento de agua para la población beneficiaria en condiciones adecuadas de calidad y cantidad, y las actividades propuestas deberán contar, de manera previa, con el aval técnico del Instituto Costarricense de Acueductos y Alcantarillados (ICAA).

Se autoriza a los entes prestadores indicados en este artículo para que realicen actividades del aprovechamiento de agua proveniente de fuentes superficiales y la construcción, la operación, el mantenimiento y las mejoras que sean necesarias para el sistema de abastecimiento poblacional para consumo humano, en los terrenos patrimonio natural del Estado que no formen parte de áreas silvestres protegidas y que hayan sido adquiridos por ellos mismos o por algún otro ente prestador del servicio público de abastecimiento poblacional para consumo humano, con el fin de proteger el agua y asegurar la prestación de este servicio a las futuras generaciones. En estos casos, pero los entes prestadores deberán cumplir con los demás requisitos establecidos en este artículo y en la normativa nacional. Los entes prestadores continuarán administrando estos terrenos, que en los demás aspectos seguirán sujetos a las condiciones, limitaciones y protecciones propias del patrimonio natural del Estado, según lo dispuesto en esta ley.

El Instituto Costarricense de Acueductos y Alcantarillados deberá asegurar que no se altere el caudal ecológico indispensable para el funcionamiento del ecosistema, dentro y fuera de las áreas silvestres protegidas, de manera que se mantenga bajo un esquema de uso y aprovechamiento sostenible. El monitoreo de este le corresponderá al Minae.

En forma anual, el ente autorizado prestador del servicio público para el abastecimiento poblacional autorizado deberá presentar, ante el Sistema Nacional de Áreas de Conservación (Sinac) y la Dirección de Aguas, el informe de los resultados de los aforos, dada la naturaleza y la fragilidad ambiental de las áreas silvestres protegidas”.

Aunado a lo anterior, el Reglamento a la Ley Forestal indica:

“Artículo 11.-En los terrenos previamente declarados como Patrimonio Natural del Estado, tanto dentro de las Áreas Silvestres Protegidas como fuera de ellas, sólo se permitirá realizar actividades de capacitación, ecoturismo e investigación, estas actividades estarán sujetas a lo establecido en el plan de manejo del Área Silvestre Protegida y otras regulaciones establecidas en la presente normativa, de la siguiente manera:

A- Dentro de las Áreas Silvestres Protegidas En el caso de las Áreas Silvestres Protegidas a excepción de los Parques Nacionales y las Reservas Biológicas, las actividades de ecoturismo se podrán realizar única y exclusivamente en las zonas establecidas por el Sistema Nacional de Áreas de Conservación (SINAC), de conformidad con la zonificación de cada Área Silvestre Protegida.

B- Fuera de las Áreas Silvestres Protegidas En los terrenos del Patrimonio Natural del Estado, que se ubiquen fuera de las Áreas Silvestres Protegidas se permite desarrollar todas las actividades establecidas en el artículo 18 de la Ley Forestal. A continuación se detalla el tipo de actividad permitida según cada categoría:

Las actividades de ecoturismo que se pueden desarrollar son las siguientes:

a. Senderos o caminos rústicos.

b. Áreas para acampar.

c. Miradores.

d. Canopy.

e. Ascensión a un árbol que sirva de mirador (plataformas de observación en árboles, siempre que el árbol no sea el nicho de crianza o cueva de alguna especie).

f. Puentes colgantes.

g. Rapel.

h. Áreas para descanso.

i. Áreas para almuerzo.

j. Kayak, canotaje.

k. Ciclismo recreativo.

l. Pesca (esta actividad no podrá realizarse dentro de los Parques Nacionales y Reservas Biológicas, ni dentro de los humedales que se encuentren dentro de estas categorías).

m. Otras compatibles con el ambiente y los objetivos de este decreto.

n. Alberges.

Las actividades de investigación que se pueden desarrollar son las siguientes:

• a)Miradores para observación de especies silvestres o para control y protección. (única y exclusivamente con fines científicos).
• b)Senderos (única y exclusivamente con fines científicos).
• c)Instalación de trampas cámara.
• d)Recolección de muestras de biodiversidad, de conformidad con lo establecido en la Ley de la Biodiversidad N º 7788 y su reglamento.
• e)Restauración, mejoramiento y/o rehabilitación de humedales y otros ecosistemas.
• f)Otras relacionadas y debidamente autorizadas.

Para realizar actividades de capacitación se pueden desarrollar son las siguientes:

• a)Giras demostrativas.
• b)Aulas ecológicas.
• c)Programas de educación ambiental.
• d)Otras relacionadas y debidamente autorizadas.

El SINAC concederá permisos de uso dentro del Patrimonio Natural del Estado cuyas actividades deberán ser autorizadas por el Director o Directora del Área de Conservación correspondiente. Todo permiso de uso aprobado o denegado será a través de una resolución administrativa debidamente fundamentada. Dicho permiso no podrá ser cedido, traspasado o donado, será otorgado en condición precaria, y por ende no implica derecho alguno de propiedad sobre el terreno, y podrá ser revocado cuando el Estado así lo determine por razones de conveniencia, de oportunidad o de interés público, de conformidad con el artículo 154 de la Ley General de la Administración Pública , Ley Nº 6227.

El plazo de vigencia de los permisos de uso otorgados será de cinco años, y podrá ser superior a dicho plazo cuando legal y técnicamente ha sido justificado por el solicitante y aprobado por el Área de Conservación respectiva, la necesidad del plazo para su ejecución, mismo que no podrá superar los 10 años. En todos los casos, y con seis meses de antelación al vencimiento del permiso, el Área de Conservación respectiva comunicará al interesado el vencimiento de su permiso de uso, para tal efecto el interesado deberá de solicitar la respectiva prórroga por escrito y haciendo constancia de ello en el expediente administrativo, bajo el apercibimiento de que la omisión implicará la caducidad automática del permiso de uso. Las prórrogas podrán darse en forma consecutivas. Una vez vencido el permiso de uso, y no medie solicitud de prórroga, el mismo no tendrá validez alguna para el administrado, teniendo la obligación de gestionarlo nuevamente, con el respectivo cumplimiento de los requisitos dados por ley y reglamento.

Cada Área de Conservación deberá conformar un expediente debidamente rotulado, ordenado cronológicamente y foliado, por cada permiso de uso otorgado e inscribirlos en un libro de registro, en el cual consignará fecha de emisión, número de resolución administrativa con la que se aprueba o rechaza el permiso, periodo de vigencia del permiso, tipo de permisionario sea persona física o jurídica, y actividad a realizar.

Para todo aquel permiso de uso en áreas del Patrimonio Natural del Estado deberá cumplirse con los siguientes requisitos, ante el Área de Conservación correspondiente:

1. Solicitud por escrito indicando nombre completo, número de cédula física o jurídica, dirección del solicitante, lugar o medio para recibir notificaciones y teléfono, área de interés, actividad a realizar, ubicación en hoja cartográfica del área solicitada.

2. Croquis o dibujo a escala del área de interés.

3. Copia certificada de la cédula física o cédula jurídica.

4. Anteproyecto de las actividades que desea desarrollar.

El Área de Conservación respectiva, tendrá un plazo máximo de un mes para aprobar o denegar la solicitud, una vez el administrado haya cumplido a cabalidad con los requisitos aquí establecidos.

Además de los requisitos citados, los interesados deberán cumplir con las siguientes disposiciones:

• a)La infraestructura deberá contar con facilidades para cubrir las necesidades de personas discapacitadas. (Ley Nº 7600) b) Todo desarrollo deberá contar con los equipos necesarios y un plan para actuar en caso de emergencia.
• c)Los sistemas de iluminación exterior deberán estar proyectados hacia el suelo y en las vías de acceso (caminos, senderos) estarán a una altura de 80 centímetros sobre el suelo y siempre dirigiendo su haz de luz hacia abajo. Bajo ninguna circunstancia se autorizarán reflectores dirigidos hacia el bosque o la playa.
• d)No se permitirá la excavación y, los desechos de cualquier construcción deberán ser adecuadamente dispuestos para su traslado o eliminación.
• e)En casos debidamente justificados, se permitirá la poda de ramas o bien la corta de árboles cuando estos representen un peligro para las personas y la fauna del lugar.
• f)Las actividades de investigación a desarrollar deberán contar con los requisitos y permisos establecidos en la Ley de Conservación de la Vida Silvestre N° 7317 y su Reglamento.
• g)El permisionario deberá garantizar la integridad del área asignada, estableciendo los medios y mecanismos efectivos de control y protección, los cuales deben formar parte del plan de manejo.
• h)Presentar informes periódicos sobre la ejecución del plan.
• i)El AC valorará si en un determinado territorio se puede autorizar la realización de dos o tres actividades simultáneamente en el mismo sector o dispersas en el tiempo y espacio.

Una vez aprobada la solicitud por parte del Área de Conservación respectiva, el interesado deberá presentar un Proyecto Específico de las actividades a desarrollar y la aprobación por parte de la Secretaría Técnica Nacional Ambiental (SETENA), de la viabilidad ambiental o estudio de impacto ambiental, según corresponda.

Según la actividad a realizar, el Proyecto respectivo deberá contener al menos:

• 1)Actividad ecoturística a. Resumen Ejecutivo del proyecto b. Introducción.

c. Justificación.

d. Objetivos e. Diagnóstico e inventario de los recursos naturales del área de interés y de la zona aledaña, f. Desarrollo de la propuesta de proyecto.

g. Capacidad de carga turística (cuando aplica).

h. Estudio de factibilidad. Relación costo-beneficio.

i. Plan de diseño del sitio j. Plan de manejo de desechos (cuando corresponda) k. Cronograma de actividades 2) Actividad de capacitación a. Resumen ejecutivo del proyecto b. Introducción.

c. Justificación.

d. Objetivos e. Desarrollo de la propuesta de proyecto.

f. Plan de manejo de desechos (cuando corresponda) g. Cronograma de actividades 3) Actividad de investigación a. Anteproyecto de investigación según Decreto Ejecutivo Nº 32553-MINAE, publicado en La Gaceta N ° 197 de 13 de octubre de 2005.

Tendrán prioridad para el otorgamiento de un permiso de uso en terrenos del Patrimonio Natural del Estado, siempre que cumplan con los requisitos establecidos en este Reglamento, los siguientes casos:

• a)Las empresas o personas físicas que sean titulares de un contrato de concesión por parte de la Municipalidad respectiva, conforme lo establece la Ley 6043 sobre la Zona Marítima Terrestre sobre esos terrenos con anterioridad a su traslado al Patrimonio Natural del Estado.
• b)Las empresas o personas físicas que sean ocupantes de la parcela y que han realizado acciones previas para obtener un contrato de concesión o la obtención de un permiso de uso, cuido y mantenimiento de la parcela ante la respectiva Municipalidad. Para todos los efectos deberán aportar la documentación que acredite dicha condición.
• c)Los pobladores u organizaciones locales.

El SINAC será el órgano responsable para establecer los montos por los cánones según las actividades a realizar. Para el otorgamiento del permiso de uso cobrará un canon anual correspondiente al 2% anual sobre el valor de las obras de infraestructura construidas dentro del área del permiso de uso y el valor de la tierra de acuerdo con el avalúo de la Dirección General de Tributación Directa respectiva. El canon a pagar por el permisionario deberá ser depositado en la cuenta del Fondo de Parques Nacionales N° 41220-5 del Banco Nacional de Costa Rica; y deberá presentar comprobante de depósito ante el Área de Conservación respectiva para dejar constancia de ello en el expediente administrativo.

(Así reformado por el artículo 2° del decreto ejecutivo N° 35868 del 24 de marzo de 2010)” (el resaltado fue añadido).

Ergo, en la Ley Forestal y su reglamento se prevé la posibilidad de autorizar, mediante permisos, el uso privativo del patrimonio natural del Estado otorgadas en precario a favor de sujetos de derecho privado, para efectuar actividades de investigación, capacitación, ecoturismo y acceso a agua potable. Sin embargo, de interés para el sub lite, debe advertirse que, en los parques nacionales, no se permite otorgar este tipo de autorización en relación con el ecoturismo.

Ahora bien, cabe advertir que, aun cuando los parques nacionales son considerados categorías de protección absoluta en los que no se permite autorizar permisos de uso para actividades de ecoturismo, ello no significa que no puedan concesionarse o autorizarse contratos para la prestación de ciertos servicios no esenciales. Incluso, en la Ley del Servicio de Parques Nacionales, lo que se prohíbe son las concesiones para la explotación de productos de parques nacionales, por cuanto en el ordinal 12 se estatuye que: “No pueden otorgarse concesiones de tipo alguno para la explotación de productos de los parques nacionales, ni otorgarse permiso para establecer otras instalaciones que las del Servicio”. Al respecto, cabe indicar que, hoy día, en varios parques nacionales hay concesiones para la prestación de servicios no esenciales; verbigracia, Chirripó, Volcán Irazú y Volcán Poás.

Empero, lo anterior no significa que en los parques nacionales puedan otorgarse concesiones de manera irrestricta, como señaló la Sala en la sentencia nro. 2015012955 de las 9:20 horas del 21 de agosto de 2015:

“VII.- Sobre la licitación de servicios no esenciales, la colocación de contenedores y estructuras en el parque y la ausencia de permisos y autorizaciones para ello. (…) Efectivamente, el Parque Nacional Manuel Antonio fue declarado parque nacional mediante la ley Nº 5100. Ello implica no solo que los territorios que comprende pasaron a formar parte del Patrimonio Natural del Estado, sino que están sometidos a un régimen especial de protección. Este régimen se visualiza claramente en el caso sub examine, pues la actividad prevista en la licitación usualmente no requeriría la viabilidad ambiental de la SETENA; sin embargo, el trámite de dicha viabilidad es ineludible para este caso precisamente por llevarse a cabo en un Área Ambientalmente Frágil. Ahora bien, la Sala pudo tener por acreditado, con base en las declaraciones de las partes, que las autoridades encargadas del parque permitieron el ingreso de contenedores al parque, aun cuando el proyecto no contaba con viabilidad ambiental y ni siquiera se había oficializado el trámite ante la SETENA.

La finalidad de obtener la viabilidad ambiental, ya sea la potencial o la licencia, es prevenir que el proyecto o actividad ocasione daños al ambiente, lo que implica que dicha viabilidad deba ser tramitada de previo al inicio del proyecto (véase el artículo 2 del Decreto Ejecutivo Nº 31849, Reglamento General sobre los Procedimientos de Evaluación de Impacto Ambiental). En ese tanto, el hecho de que la Administración del parque nacional permitiera el ingreso y permanencia de los contenedores que servirían a las actividades de la concesión sin que la SETENA hubiera otorgado de previo algún tipo de viabilidad constituye una lesión al derecho a un ambiente sano y ecológicamente equilibrado. En consecuencia y con el fin de reestablecer la situación a su estado original, la Sala declara con lugar el extremo y ordena a las autoridades recurridas que procedan a retirar del Parque Nacional los mencionados contenedores, hasta tanto no se cuente con la aprobación de la SETENA.

La condenatoria se limita a las autoridades encargadas del Parque Nacional, por ser ellas las llamadas a protegerlo y administrarlo correctamente. Se desestima el recurso en contra de las empresas accionadas, pues se consideran que actuaron de buena fe, amparadas en la autorización que las autoridades recurridas les habían otorgado”.

Lo anterior coincide con la posición vertida por este Tribunal en la sentencia nro. 2010-18702 de las 15:27 horas del 10 de noviembre de 2010:

“Ciertamente, cada concesión requerirá de previo un estudio de impacto ambiental evaluado por parte de SETENA, no obstante lo anterior, algunos de estos ecosistemas, por ejemplo las reservas marinas, son áreas que fueron protegidas precisamente con la intención de que en esta zona no se realice ninguna actividad extractiva y no se vea afectada tampoco, por ningún tipo de contaminación (escapes de motores, contaminaciones acústicas, contaminaciones luminosas, etc.), para que la flora y la fauna se vayan regenerando a lo largo del tiempo, hasta que sus poblaciones alcancen el mayor número de ejemplares que pueda haber en ese sitio; lo cual es totalmente excluyente con la concesión de una marina turística por los efectos que evidentemente lo alterarán. Otros ecosistemas de los citados puede ser que no requieran necesariamente una veda absoluta de toda actividad, pero cualquier autorización en ese sentido debe ser valorada y anticipada. Como ya se indicó, resulta irrazonable proteger unas zonas y otras no sin un criterio técnico que así lo sustente, pues ello resulta lesivo del principio precautorio y del principio de progresividad del ámbito de tutela de los derechos fundamentales”.

De manera más reciente, en la supracitada sentencia nro. 2022-22606 de las 13:10 horas del 28 de setiembre de 2022, esta Sala estimó que, en atención al principio precautorio, se debe contar con estudios de impacto ambiental evaluados por la Secretaría Técnica Nacional Ambiental de previo a habilitar el otorgamiento de concesiones en el Refugio Nacional de Vida Silvestre Ostional. Así, de forma unánime, esta Cámara indicó:

“(…) también resulta en una inconstitucionalidad por el fondo por cuanto, en acatamiento del Principio Precautorio, se requiere de previo a cambiar la naturaleza del Refugio, su ámbito de protección, y a posibilitar concesiones, de un estudio de impacto ambiental evaluado por parte de Secretaría Técnica Ambiental, de modo tal que se demuestre el tipo de daño y las medidas que deban adoptarse, estudio que se echa de menos en esta iniciativa de ley, ya que no podría dejar de protegerse un refugio sin criterios técnicos que así lo respalden (…)”.

De este modo, algunos tipos de concesión están permitidos en los parques nacionales, dado que la Ley del Servicio de Parques Nacionales centra la proscripción en lo indicado en su ordinal 12, que reza “No pueden otorgarse concesiones de tipo alguno para la explotación de productos de los parques nacionales, ni otorgarse permiso para establecer otras instalaciones que las del Servicio”. No obstante, en atención al principio de objetivación de la tutela ambiental resulta necesario que, previo al otorgamiento de una autorización, permiso de uso, o una concesión -según lo establece el ordinal 9 de la ley nro. 9892-, se cuente con un estudio que permita determinar técnica y científicamente que no se va a perjudicar al ambiente. Además, merced a la afectación al ambiente que podría derivar de la explotación de una concesión, una autorización o un permiso de uso en un área silvestre protegida de resguardo absoluto como lo es un parque nacional, es menester que se adopten medidas suficientes y adecuadas para preservar el ambiente conforme a los principios precautorio y preventivo.

Concerniente al sub examine, cabe señalar que con la ley nro. 5469, por medio de la que se traspasó la propiedad de la Isla San Lucas a la Municipalidad de Puntarenas, se establecía: “Artículo 3º.- La Municipalidad podrá hacer dicha explotación por sí misma o por licitación pública. En este último caso la adjudicación debe hacerse necesariamente a la mejor oferta, a juicio de la Municipalidad, que se reciba de empresas de capital nacional”. Ahora, con la emisión de la ley nro. 9892, tal numeral fue derogado y, en su lugar, se prevé la posibilidad de otorgar autorizaciones, concesiones y permisos de uso para actividades e instalaciones distintas del servicio de parques en la zona turística -artículo 7 eiusdem-.

En consecuencia, este Tribunal considera que los ordinales 7, así como los incisos f) y j del numeral 9 de la ley nro. 9892, en relación con la autorización de concesiones y permisos en la Isla San Lucas, no resultan inconstitucionales, siempre que, de previo a la aprobación de tales autorizaciones, concesiones y permisos se cuente con estudios técnicos previos, suficientes, individualizados y necesarios para determinar i) la necesidad de otorgarlos y; ii) que no se causará daño o se pondrá en peligro al ambiente ni el patrimonio cultural.

XII. SOBRE LA ALEGADA INCONSTITUCIONALIDAD DE LA LEY NRO

9892, EN CUANTO AL FINANCIAMIENTO INCIERTO.

Los accionantes exponen que el Parque Nacional Isla San Lucas carece de presupuesto. Estiman que tal situación contraría el artículo 36 de la Ley Orgánica del Ambiente (en relación con el 50 constitucional), que establece que para crear nuevas áreas se debe prever el financiamiento para protegerla y manejarla. Sostienen que la normativa impugnada creó un parque nacional con una zona turística sin que se hubiera previsto un financiamiento concreto para desarrollar lo pertinente, lo que es irresponsable pues deja ese asunto a la buena voluntad de las instituciones y empresas. En igual sentido, cuestionan que en el numeral 5 se establece la obligación estatal de restaurar el patrimonio arquitectónico ubicado dentro de la isla, pero no se señala de dónde provendrán esos recursos. Por último, consideran que, si se habla de que las empresas donarán mantenimiento y hasta podrán hacer inversiones, como lo dice el ordinal 18 eiusdem, podría ser debido a que persiguen fines comerciales para explotar el parque nacional, lo cual es perverso, dado que abre toda una plataforma para que en el sector de aprovechamiento turístico sostenible se desnaturalice la finalidad de un parque nacional.

En cuanto a este agravio, este Tribunal constata que en la cuestionada ley nro. 9892 se dispone:

“ARTÍCULO 17- Financiamiento. El Parque Nacional Isla San Lucas dispondrá de recursos financieros que le permitan ejercer sus mandatos con agilidad y eficiencia. Estos incluirán los recursos que le correspondan por ley del Sistema Nacional de Áreas de Conservación (Sinac), transferencias de los presupuestos de la República o donaciones de cualquier persona física o jurídica, así como los fondos propios que genere el ingreso al parque, la utilización de sus servicios, los cánones por concesiones y permisos y, en general, por el pago de las actividades realizadas dentro del parque.

Los recursos regulados en la presente ley así como todos aquellos que produzca el parque, necesaria y exclusivamente serán invertidos en el mismo parque nacional.

La fiscalización estará a cargo de la Contraloría General de la República.

ARTÍCULO 18- Autorización para donar y subvencionar. Se autoriza a todo el sector público estatal, no estatal y financiero para que haga donaciones, inversiones e incluya subvenciones presupuestarias a favor del Parque Nacional Isla San Lucas.

El Instituto Costarricense de Turismo (ICT) podrá transferir recursos económicos a la Junta Directiva del Parque Nacional Isla San Lucas para la realización de sus inversiones en desarrollo y actividades ordinarias; asimismo, podrá diseñar y realizar la promoción y el mercadeo para la visitación del parque.

Podrá recibir, la Junta Directiva, donaciones de parte de organismos internacionales y gobiernos extranjeros interesados en coadyuvar en los fines del parque.

ARTÍCULO 19- Autorización para créditos y préstamos. Para cumplir con sus objetivos, la Junta podrá concertar créditos y o préstamos, con entidades públicas o privadas, nacionales o extranjeras, siempre sujeta a los controles y las disposiciones de la Ley 8131, Ley de Administración Financiera de la República y Presupuestos Públicos, de 18 de setiembre de 2001” (el resaltado fue agregado).

Visto lo anterior, obsérvese que en la Ley Orgánica del Ambiente impone como requisito para crear nuevas áreas silvestres protegidas contar con “d) Financiamiento mínimo para adquirir el área, protegerla y manejarla”.

También cabe señalar que la Ley de Biodiversidad regula que:

“ARTÍCULO 35.- Financiamiento El Sistema Nacional de Áreas de Conservación deberá diseñar mecanismos de financiamiento que le permitan ejercer sus mandatos con agilidad y eficiencia. Dichos mecanismos incluirán transferencias de los presupuestos de la República, o de cualquier persona física o jurídica, así como los fondos propios que generen las áreas protegidas, incluyendo las tarifas de ingreso, el pago de servicios ambientales, los canjes de deuda, los cánones establecidos por ley, el pago por las actividades realizadas dentro de las áreas protegidas y las donaciones.

ARTÍCULO 36.- Instrumentos financieros Para los efectos del artículo anterior, se autoriza al Sistema para administrar los fondos que ingresen al Sistema por cualquier concepto, por medio de fideicomisos u otros instrumentos, ya sean estos para todo el sistema, o específicos para cada Área de Conservación. El Fondo de Parques Nacionales, creado por la Ley de Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977, se transforma en el Fideicomiso de áreas protegidas, dedicado exclusivamente a los fines para los que fue creado, a partir de ahora incluso al financiamiento de actividades de protección y consolidación en las otras categorías de áreas protegidas de propiedad estatal (…)

ARTÍCULO 38.- Autofinanciamiento El Sistema utilizará en las Áreas de Conservación, para su funcionamiento, la totalidad de los fondos que generen sus actividades, tales como las tarifas de ingreso a las áreas protegidas o las concesiones de servicios no esenciales. Estos serán administrados por medio del Fideicomiso de áreas protegidas. Los fondos que generen las áreas protegidas serán exclusivamente para su protección y desarrollo, en ese orden de prioridad. El Consejo Nacional de las Áreas de Conservación será el órgano que definirá los presupuestos anuales, de manera que el Sistema se fortalezca en su integridad (…)

ARTÍCULO 41.-Fondos y recursos existentes Además, para el fiel cumplimiento de los fines y objetivos de la Ley de Conservación de la Vida Silvestre, No. 7317, de 30 de octubre de 1992; la Ley Forestal, No. 7575, de 13 de febrero de 1976; la Ley de Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977, y la Ley Orgánica del Ambiente, No. 7554, de 4 de octubre de 1995, atender los gastos que deriven de ellas, el Sistema contará con los aportes de los presupuestos de la República y los recursos de los fondos ya existentes en el Sistema, los cuales podrán administrarse bajo la figura de un fideicomiso o con los instrumentos financieros que se definan”.

Ahora bien, aun cuando la parte accionante estima que la ley nro. 9892 prevé un financiamiento incierto en relación con el Parque Nacional Isla San Lucas, no menos cierto es que, en realidad, ese cuerpo normativo sí establece el modo en el que esa área silvestre protegida contará con recursos financieros. Obsérvese que en el artículo 17 eiusdem regula que, entre tales recursos, contará con los correspondientes al SINAC, así como que “cualquier persona física o jurídica, así como los fondos propios que genere el ingreso al parque, la utilización de sus servicios, los cánones por concesiones y permisos y, en general, por el pago de las actividades realizadas dentro del parque”.

Así, prima facie carece de sustento la alegada inconstitucionalidad del ordinal 17 de la ley nro. 9892. Por lo demás, lo acusado por los accionantes, en cuanto a la posibilidad de que empresas que hagan donaciones o inversiones en el Parque Nacional Isla San Lucas persigan fines comerciales que desnaturalicen el propósito de un parque nacional, no pasa de ser una mera especulación. Consiguientemente, este extremo de la acción se declara sin lugar.

XIII. SOBRE LA ALEGADA INCONSTITUCIONALIDAD DE LA LEY NRO

9892, RESPECTO A LA INCORPORACIÓN DE OFICIALES DE SEGURIDAD PRIVADA EN EL PARQUE NACIONAL ISLA SAN LUCAS.

Refieren los gestionantes, que la ley nro. 9892, en su artículo 15, tiene un vicio de constitucionalidad, en tanto autoriza que personal de seguridad privada sea integrado para hacer labores de vigilancia en el Parque Nacional Isla San Lucas, lo que incluso atenta contra las finanzas de este, pues no se indica de dónde provendrán los fondos para cubrir los salarios de los oficiales. Además, afirman que el trabajo de vigilancia debe estar en manos de los guardaparques del SINAC, quienes tienen el conocimiento, la capacitación y la sensibilidad para actuar dentro de un parque nacional.

Respecto a este agravio, el numeral 15 de la ley nro. 9892 regula lo concerniente a la vigilancia y seguridad del Parque Nacional Isla San Lucas de esta forma:

“ARTÍCULO 15- Vigilancia y seguridad. Para la vigilancia y seguridad del Parque Nacional Isla San Lucas se contará con la dotación necesaria de guardaparques del Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente y Energía (Minae), sin perjuicio de la posibilidad de que la Junta Directiva, directamente o por medio del fideicomiso de administración correspondiente, pueda contratar la seguridad que considere necesaria; dicho personal no tendrá autoridad de policía ni podrá ejercer funciones indelegables propias de la administración. Asimismo, podrá recurrir al auxilio del Ministerio de Seguridad en situaciones que así lo ameriten” (el énfasis fue agregado).

Adicionalmente, la Ley de Conservación de la Vida Silvestre establece:

“Artículo 7.- El Sistema Nacional de Áreas de Conservación del Ministerio de Ambiente y Energía tiene las siguientes funciones en el ejercicio de su competencia: (…)

• i)Crear y gestionar los programas de manejo, control, vigilancia e investigación sobre la vida silvestre (…)

Artículo 15.-Para coadyuvar a la aplicación y cumplimiento de esta Ley, el Ministerio de Ambiente y Energía nombrará inspectores de vida silvestre; inspectores ad honorem de vida silvestre y comités de vigilancia de los recursos naturales (COVIRENAS).

Los inspectores de Vida Silvestre tienen autoridad de policía y deben estar debidamente identificados con un carné extendido por el Ministerio de Ambiente y Energía. Para aspirar a un nombramiento de esta naturaleza, los inspectores deberán ser personas de buena conducta, para lo cual, a solicitud del Ministerio de Ambiente y Energía, el Registro Judicial de Delincuentes deberá extender una certificación de sus antecedentes. Los demás requisitos de ingreso se fijarán en el Reglamento de esta Ley. Sus nombramientos pueden ser revocados, en cualquier momento, por el Ministerio de Ambiente y Energía.

Artículo 16.- Para el fiel cumplimiento de las obligaciones establecidas en esta ley, los inspectores de vida silvestre, los inspectores forestales, los guardaparques y funcionarios del Sinac debidamente acreditados para esos fines y en el desempeño de sus funciones están facultados para detener, transitar, entrar y practicar inspecciones, dentro de cualquier finca y embarcación, lo mismo que en las instalaciones industriales y comerciales involucradas, así como para decomisar los organismos, las partes, los productos y los derivados de vida silvestre, junto con el equipo utilizado en la comisión de un delito o actividad prohibida por esta ley.

En el caso de los domicilios privados se deberá contar con el permiso de la autoridad judicial competente o del propietario” (el énfasis fue agregado).

Por su parte, la Ley Forestal dispone en su ordinal 54:

“ARTÍCULO 54.- Funcionarios de la Administración Forestal Los funcionarios de la Administración Forestal del Estado tendrán carácter de autoridad de policía, como tales y de acuerdo con la presente ley, deberán denunciar ante las autoridades competentes las infracciones cometidas. Las autoridades de policía estarán obligadas a colaborar con los funcionarios de la Administración Forestal del Estado, cada vez que ellos lo requieran para cumplir, cabalmente, con las funciones y los deberes que esta ley les impone. Para el cumplimiento de sus atribuciones, estos funcionarios, identificados con su respectivo carné, tendrán derecho a transitar y a practicar inspecciones en cualquier fundo rústico o industrial forestal, excepto en las casas de habitación ubicadas en él; así como decomisar la madera y los demás productos forestales aprovechados o industrializados ilícitamente y secuestrar, en garantía de una eventual sanción, el equipo y la maquinaria usados en el acto ilícito. También, decomisarán el medio de transporte que sirva como instrumento o facilitador para la comisión del delito, previo levantamiento del acta respectiva. Todo lo anterior deberá ponerse a la orden de la autoridad judicial competente, en un plazo no mayor de tres días” (la negrita fue agregada).

Asimismo, obsérvese que en el ordinal 35 de la Ley Orgánica del Ambiente se establece: “La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos: (…) f) Proteger los entornos naturales y paisajísticos de los sitios y centros históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico, de importancia para la cultura y la identidad nacional”.

Ahora bien, cabe traer a colación lo indicado por este Tribunal en la sentencia nro. 2004-10492 de las 15:28 horas del 28 de setiembre de 2004, en la que se analizó la concesión del servicio público de seguridad, específicamente de tipo intracarcelario:

“X.- Competencias del concesionario en relación con la prestación de servicios de seguridad. Quizás de todos los aspectos que contempla el procedimiento de contratación objeto de esta acción, el referente a la prestación de servicios de seguridad intracarcelaria por parte del concesionario es el que con más vehemencia cuestionan los actores, pues es precisamente en esta función donde el Estado más habitualmente hace uso de sus potestades de imperio para imponer a los privados de libertad el cumplimiento de las diversas reglas convivenciales propias de un centro de atención institucional, y asegurar así el cumplimiento de los fines de la privación de libertad y garantizar la seguridad de todos los internos, del personal a cargo y de terceros. De esa forma, se observa que las cláusulas 2.2.4, 2.4.1.b) y c), 23.1, 23.2.1, 23.3.2, 23.5.2.1, 23.5.4 y 23.5.5.d) del Cartel de Licitación, 2.1.1, 5.4, 6.2, 6.2.5, 6.3.1 del Documento X del Anexo 1A, así los documentos X(b) y X(c) del Anexo 1A, describen en forma profusa las atribuciones y deberes del concesionario en lo que atañe a la prestación de servicios de seguridad, manejo de los privados de libertad y actividades de apoyo a las autoridades de la Dirección General de Adaptación Social.

Si bien el Cartel dispone que la seguridad dentro del perímetro interno del centro Penitenciario corresponde al concesionario, mientras que el Estado se reserva funciones de vigilancia del perímetro externo (cfr. cláusulas 2.4.1.c), 23.5.2.1, 6.3.1 del Documento X del Anexo 1A, documentos X(b) y X(c) del Anexo 1A), para que estas disposiciones sean congruentes con el Derecho de la Constitución, deben ser interpretadas del siguiente modo: ninguna de tales cláusulas puede ser entendida en el sentido que permita al concesionario imponer sus decisiones o las de cualesquiera otros sujetos a los privados de libertad. El uso proporcional de la fuerza y la coacción directa únicamente pueden ser válidamente empleados como reacciones inmediatas contra la comisión de delitos, o bien como defensa para la protección de bienes jurídicos propios o ajenos del concesionario, sea la seguridad de las personas que se encuentren dentro del Centro Penitenciario (internos, visitantes, funcionarios, etc.), sea para evitar la evasión de privados de libertad, el tráfico de sustancias u objetos prohibidos, la destrucción o sustracción de bienes, etc. Así, el empleo de la fuerza cuando ello sea necesario para hacer cumplir las reglas convivenciales, sin incidencia en los bienes jurídicos mencionados, no puede ser llevado a cabo por parte del concesionario, sino por las autoridades de la Dirección General de Adaptación Social destacadas en el Centro Penitenciario de Pococí.

De allí que el concepto de “situaciones de emergencias” que de conformidad con el Cartel (cfr. cláusulas 25.4, 23.5.2.1 y 6.3.5.1 del Documento X del Anexo 1A), ameritan la intervención de las autoridades policiales apostadas en el perímetro externo del Centro, debe ser interpretado como toda situación en que se haga necesario el uso de la fuerza para asegurar la adecuada convivencia intracarcelaria, sin que estemos ante uno de los casos excepcionales ya mencionados, en que el concesionario puede actuar por sí mismo para la detención de un acto delictivo. En cualesquiera otros casos en que se presenten situaciones que comprometan la adecuada convivencia, el concesionario debe limitarse a observar lo ocurrido, intentar resolverlo en forma pacífica, reportarlo a las autoridades de la Dirección General de Adaptación Social para que actúen y elaborar los informes correspondientes a las autoridades encargadas de la valoración y régimen disciplinario de los privados de libertad, así como a prestar servicios de apoyo a los agentes de la Policía que no impliquen el ejercicio directo de potestades de imperio.

Para ello, la Dirección General de Adaptación Social debe contar permanentemente en el perímetro externo con un contingente suficiente de efectivos a efecto de poder atender adecuadamente las situaciones que se presenten. Así las cosas, en lo que atañe a las funciones mencionadas, la Sala estima que no se ha dado una transferencia de competencias reservadas al Estado, en los términos acusados por la Defensoría de los Habitantes de la República, en tanto las cláusulas que se refieran a las funciones de seguridad, manejo de los privados de libertad y actividades de apoyo a las autoridades de la Dirección General de Adaptación Social, sean interpretadas en los términos mencionados en este párrafo” (el destacado fue agregado).

En consonancia con lo expuesto y la ratio decidendi del pronunciamiento antedicho, en la especie no resulta arbitrario ni contrario a la Constitución Política que, en un área silvestre protegida, en el servicio de seguridad pueda coadyuvar, mediante una contratación, una empresa privada, siempre que tal prestación no implique el ejercicio de potestades de imperio por parte de la última. Sobre el particular, debe indicarse que este Tribunal ya se ha pronunciado sobre las funciones que pueden desempeñar los guardaparques en atención al carácter de autoridad de policía que poseen, como se observa en la sentencia nro. 2018-5836 de las 9:30 horas del 13 de abril de 2018:

“IV.- Análisis del caso. De lo informado por la autoridad recurrida competente, se tiene que los funcionarios denunciados no sólo (sic) actuaron en cumplimiento de su deber, ante una invasión y daños ambientales al Refugio Nacional de Vida Silvestre Barra del Tortuguero, sino porque cuentan con la autorización legal en los artículos 54 de la Ley Forestal y 16 de la Ley de Vida Silvestre:

“…ARTÍCULO 54.- Funcionarios de la Administración Forestal Los funcionarios de la Administración Forestal del Estado tendrán carácter de autoridad de policía, como tales y de acuerdo con la presente ley, deberán denunciar ante las autoridades competentes las infracciones cometidas.

Las autoridades de policía estarán obligadas a colaborar con los funcionarios de la Administración Forestal del Estado, cada vez que ellos lo requieran para cumplir, cabalmente, con las funciones y los deberes que esta ley les impone.

Para el cumplimiento de sus atribuciones, estos funcionarios, identificados con su respectivo carné, tendrán derecho a transitar y a practicar inspecciones en cualquier fundo rústico o industrial forestal, excepto en las casas de habitación ubicadas en él; así como decomisar la madera y los demás productos forestales aprovechados o industrializados ilícitamente y secuestrar, en garantía de una eventual sanción, el equipo y la maquinaria usados en el acto ilícito. También, decomisarán el medio de transporte que sirva como instrumento o facilitador para la comisión del delito, previo levantamiento del acta respectiva. Todo lo anterior deberá ponerse a la orden de la autoridad judicial competente, en un plazo no mayor de tres días.

ARTÍCULO 16.- Para el fiel cumplimiento de las obligaciones establecidas en esta ley, los inspectores de vida silvestre, los inspectores forestales y los guardaparques debidamente acreditados y en el desempeño de sus funciones, están facultados para detener, transitar, entrar y practicar inspecciones, así como para decomisar, dentro de cualquier finca, lo mismo que en las instalaciones industriales y comerciales involucradas, los productos y subproductos de las actividades prohibidas, junto con los implementos utilizados, definidos en el Reglamento. En el caso de los domicilios privados, se deberá contar con el permiso de la autoridad judicial competente o del propietario…”. De manera que, descartándose la arbitrariedad que se alega, en relación con el abuso de autoridad en las actuaciones descritas, lo que procede es desestimar el recurso, como en efecto se hace” (el destacado fue incorporado).

En el sub iudice, primeramente, obsérvese que la vigilancia y seguridad del Parque Nacional Isla San Lucas sí recae en el Sistema Nacional de Áreas de Conservación, cuyos guardaparques están autorizados para el ejercicio de potestades de imperio en el cumplimiento de sus funciones policiales, lo cual está en consonancia con la Ley de Conservación de la Vida Silvestre, que los autoriza a “(…) detener, transitar, entrar y practicar inspecciones, dentro de cualquier finca y embarcación, lo mismo que en las instalaciones industriales y comerciales involucradas, así como para decomisar los organismos, las partes, los productos y los derivados de vida silvestre, junto con el equipo utilizado en la comisión de un delito o actividad prohibida por esta (…)”. En segundo lugar, aun cuando la norma impugnada faculta a la Junta Directiva del Parque Nacional Isla San Lucas a contratar personal de seguridad privada, no menos cierto es que esto se encuentra restringido, toda vez que este i) no tendrá autoridad de policía; y ii) no podrá ejercer funciones indelegables propias de la administración.

Incluso, se estima plausible que se considere la posibilidad de contratar seguridad privada en la Isla San Lucas, máxime si se considera que en el pasado han ocurrido actos vandálicos que han generado un detrimento tanto en el ambiente como en el patrimonio cultural. Verbigracia, en el memorial SINAC-ACOPAC-D-485-2017 suscrito el 18 de agosto de 2017 por el director regional del Área de Conservación Pacífico Central, se indicó que: “El pasado miércoles dieciséis de agosto del dos mil diecisiete, en horas de la noche, personal destacado en el RNVSISL fue víctima de un robo a mano armada, el cual resulto en la perdida de equipo y recurso materiales, daño generalizado a la infraestructura del Sistema Nacional de Áreas de Conservación (SINAC) que existe en el lugar y daño físico y psicológico al funcionario presente, quien fuera amenazado e incluso, atado, durante el crimen. Con el propósito de salvaguardar la seguridad del personal y además, debido a que el sitio ya no cuenta con condiciones mínimas para la permanencia de funcionarios, dado el deterioro de la infraestructura, se le comunica que el SINAC retiro a los colaboradores destacados en el área silvestre protegida, quienes únicamente realizaran (sic) giras de vigilancia durante el día, y saldrán del RNVSISL en horarios adecuados para la navegación segura.

Así mismo, que por el momento y hasta que se garantice la seguridad y condiciones de habitabilidad en el sitio, no se destacara (sic) personal permanente o en horario nocturno para vigilancia. Se hace de su conocimiento lo anterior, debido a que el Área de Conservación Pacífico Central (ACOPAC) se encuentra imposibilitada, por las razones expuestas, para mantener la vigilancia hasta ahora brindada, al patrimonio cultural ubicado en esta área silvestre protegida”. Adicionalmente, en el informe policial S.I.: 0096-DRP-2018 del 12 de enero de 2018 se lee: “El día 26 de noviembre del 2017, el investigador (…) miembro del O.I.J de Puntarenas en compañía de (…) miembro de la unidad K9, junto al canino "Nany", se trasladaron en la embarcación de guardacostas desde Caldera a la Isla de San Lucas, con la finalidad de realizar una Inspección Ocular del lugar que fue destruido producto de un incendio, (…) localizando la destrucción total de una edificación construida en madera, consumida en su totalidad por la acción del fuego, en la que determinaron que la mayor concentración de calor estuvo en la pared del costado este, ya que material de metal en la edificación la localizan doblada por la intensidad del fuego, en la revisión realizada por el canino “Nany", este logró localizar rastros de hidrocarburos en la esquina inferior del marco de la puerta del costado este del aposento dos, además, localizaron dos rastros de huellas latentes en una botella ubicada cerca de los restos quemados de la infraestructura, los cuales fueron remitidos para su análisis al Archivo Criminal de Puntarenas (…) El día 13 de diciembre del 2017, al ser las 08:00 horas, el investigador del caso, entrevistó al denunciante en calidades en la denuncia conocidas, quien ratificó los hechos denunciados, agregó; que la primera persona que llegó a la Isla fue el señor Diego, con un grupo de voluntarios, encontrando la quema en el edificio principal, pero que debido a que en el mes de agosto del 2017, fueron víctimas de asalto a los guardas del lugar, decidieron no volver a dejar a funcionarios en la noche, así que desde las 16:00 horas la isla queda sin persona alguna, luego, en una inspección con personal de ingeniería de bomberos, lograron determinar la sustracción de lavatorios, servicios sanitarios, picaportes, entre otras cosas, que al principio no sabían (…) El día 11 de enero del 2018, al ser las 10:45 horas, el investigador del caso, entrevistó a Diego (…), funcionario de A.S.V.O, (…) quien manifestó'; que el día de los hechos, él ingresó con varios voluntarios a la Isla de San Lucas, cuya finalidad era dar mantenimiento a las instalaciones, la sorpresa fue que al llegar al sitio el edificio principal se había quemado en su totalidad, por lo que de inmediato dio aviso a Olger (…); agregó, que lo extraño al llegar, fue encontrar gran cantidad de latas de cerveza y licor, así como chingas de cigarro por las escaleras, además, un área de la vegetación quemada por la acción del fuego, mostrando que alguien evitó que el fuego se propagara en la vegetación. Concluyó diciendo que no contaba con mayor información que aportar”.

Ergo, la mera posibilidad de la contratación de seguridad privada con base en la norma impugnada no implica que el personal de las empresas beneficiadas ostente potestades de imperio en la prestación del servicio correspondientes. Dentro de este contexto, a los efectos de prodigar mayor certeza acerca del punto, resulta del todo plausible interpretar la referida norma conforme a la Constitución, en el sentido de que la seguridad privada no tendrá autoridad de policía ni está facultada para el ejercicio de potestades de imperio en la prestación del servicio en cuestión.

XIV- CONCLUSIÓN. Corolario de todo lo expuesto, procede declarar sin lugar esta acción respecto de los alegatos de los accionantes, advirtiendo que no se considera inconstitucional la integración de la Junta Directiva que se regula en el numeral 9 cuestionado, siempre y cuando se interprete el último párrafo del citado artículo en el sentido de que en aquellas decisiones que se refieren a la materia ambiental y al patrimonio histórico arquitectónico, ese órgano colegiado deberá consultar de previo a los órganos que ahí se citan, cuyos criterios -en sus respectivas materias- serán obligatorios para la Junta Directiva. Asimismo, se advierte que, cualquier decisión concreta relativa a la administración o al manejo del parque nacional, igualmente podrá ser controlada en las vías ordinarias de legalidad, o en la constitucional, en caso de llegarse a estimar que, a través de esas decisiones, llegue a producirse una lesión al derecho fundamental a un ambiente sano y ecológicamente equilibrado.

La magistrada Garro Vargas consigna nota. Los magistrados Cruz Castro, Rueda Leal y Garita Navarro salvan el voto, declaran con lugar la acción y anulan la ley nro. 9892 del 24 de agosto de 2020, denominada "Ley de Creación del Parque Nacional Isla San Lucas", por violación a los principios de progresividad y de no regresión en materia ambiental, los principios precautorio y preventivo -en materia ambiental y de patrimonio cultural-, el principio de objetivación de la tutela ambiental y los artículos 50 y 89 de la Constitución Política. El magistrado Cruz Castro da razones adicionales.

XV. DOCUMENTACIÓN APORTADA AL EXPEDIENTE

Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contado a partir de la notificación de este pronunciamiento. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión n.º 27-11 del 22 de agosto del 2011, artículo XXVI, y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión n.º 43-12 del 3 de mayo del 2012, artículo LXXXI.

Por tanto:

Por mayoría se declara sin lugar la acción de inconstitucionalidad. Por mayoría, se considera que no es inconstitucional la integración de la Junta Directiva que se regula en el numeral 9, siempre y cuando se interprete el último párrafo del citado artículo en el sentido de que en aquellas decisiones que se refieren a la materia ambiental y al patrimonio histórico arquitectónico, ese órgano colegiado deberá consultar de previo a los órganos que ahí se citan, cuyos criterios -en sus respectivas materias- serán obligatorios para la Junta Directiva. La magistrada Garro Vargas consigna nota. Los magistrados Cruz Castro, Rueda Leal y Garita Navarro salvan el voto, declaran con lugar la acción y anulan la ley nro. 9892 del 24 de agosto de 2020, denominada "Ley de Creación del Parque Nacional Isla San Lucas", por violación a los principios de progresividad y de no regresión en materia ambiental, los principios precautorio y preventivo -en materia ambiental y de patrimonio cultural-, el principio de objetivación de la tutela ambiental y los artículos 50 y 89 de la Constitución Política. El magistrado Cruz Castro da razones adicionales. Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese al procurador general de la República, a los accionantes y a las partes. Comuníquese al presidente de la Asamblea Legislativa.

Fernando Castillo V.

Fernando Cruz C. Paul Rueda L.

Luis Fdo. Salazar A. Jorge Araya G.

Anamari Garro V. Roberto Garita N.

Res: 2023-012817 NOTA DE LA MAGISTRADA GARRO VARGAS Estimo necesario señalar que en anteriores notas (véanse las sentencias números 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316, 2022-009856 y 2021-015449, entre otras) he hecho algunas consideraciones en relación con el ejercicio del control de constitucionalidad y los instrumentos internacionales como parámetro de valoración. Al respecto, en lo conducente y en resumen, he indicado lo siguiente:

“La función de controlar la conformidad de las leyes y disposiciones generales con los tratados y convenios no está expresamente prevista en el texto constitucional sino sólo en el art. 73.d) LJC, pero no es contraria a aquél, pues permite garantizar la eficacia del art. 7 CP. Esa función de controlar dicha conformidad es una función distinta de la que ejerce la Sala en razón del art. 10 CP –el control de constitucionalidad– y de la establecida en el art. 48 CP –garantizar jurisdiccionalmente los derechos constitucionales y los de carácter fundamental establecidos en instrumentos internacionales sobre derechos humanos–.

Cuando esta Sala ejerce su función de control de constitucionalidad, no corresponde que eche mano de tratados y los utilice de hecho como si integraran el parámetro de constitucionalidad. Tales instrumentos, y sólo si están debidamente ratificados, pueden erigirse en parámetro de conformidad de las normas legales e infralegales con ellos mismos, en razón de lo establecido en el art. 7 CP y 73.d) LJC. Esto es conteste con una interpretación sistemática de la Constitución y la LJC y con el respeto a la separación de poderes, principio basilar de todo Estado democrático de Derecho”. (Lo resaltado no corresponde a los votos originales).

En el caso concreto, hay una referencia a la sentencia n.°2010-13099 de las 14:56 hrs. de 4 de agosto de 2010, en cuya resolución no participé, y en dicho precedente se hace alusión al “Código Ético Mundial para el Turismo” adoptado en 1999 por la Asamblea General de la Organización Mundial del Turismo y reconocidos posteriormente por la Asamblea General de las Naciones Unidas a través de la resolución n.°A/RES/56/212.

Considero que la referencia a dicho instrumento es pertinente si se entiende que se hace únicamente para efectos hermenéuticos y no porque resulte vinculante en sí mismo.

Anamari Garro V.

Res. nro. 2023012817 VOTO SALVADO DE LOS MAGISTRADOS CRUZ CASTRO, RUEDA LEAL Y GARITA NAVARRO, CON REDACCIÓN DEL SEGUNDO.

En el sub lite, con el respeto acostumbrado, diferimos del criterio de la mayoría de este Tribunal, declaramos con lugar la acción y anulamos la ley nro. 9892 del 24 de agosto de 2020, denominada ‘Ley de Creación del Parque Nacional Isla San Lucas’, por violación a los principios de progresividad y de no regresión en materia ambiental, los principios precautorio y preventivo -en materia ambiental y de patrimonio cultural-, el principio de objetivación de la tutela ambiental y los artículos 50 y 89 de la Constitución Política, de acuerdo con lo desarrollado de seguido.

I.Sobre las áreas silvestres protegidas y el derecho a un ambiente sano y ecológicamente equilibrado. Respecto a este derecho, en la sentencia nro. 2022022070 de las 9:20 horas del 23 de setiembre de 2022, la Sala señaló:

“Concerniente a la naturaleza de los agravios acusados en el sub lite, este Tribunal se ha pronunciado en reiteradas ocasiones respecto al derecho a un ambiente sano y ecológicamente equilibrado. Verbigracia, en la sentencia n.° 2021024807 de las 9:20 horas del 5 de noviembre de 2021, esta Cámara señaló:

“En reiteradas ocasiones, la jurisprudencia de esta Sala ha subrayado que el derecho a un ambiente sano y ecológicamente equilibrado se encuentra reconocido tanto a nivel constitucional como convencional. Asimismo, se ha indicado que la protección efectiva a ese derecho requiere que los recursos sean utilizados de manera racional, contexto en que el Estado y la ciudadanía en general deben actuar según los principios que rigen la materia ambiental. En este orden de ideas, la doctrina especializada ha señalado que el principio preventivo demanda que, cuando haya certeza de posibles daños al ambiente, la actividad afectante deba ser prohibida, limitada, o condicionada al cumplimiento de ciertos requerimientos. En general, este principio aplica cuando existen riesgos claramente definidos e identificados al menos como probables; asimismo, tal principio resulta útil cuando no existen informes técnicos o permisos administrativos que garanticen la sostenibilidad de una actividad, pero hay elementos suficientes para prever eventuales impactos negativos.

Por otra parte, el principio precautorio señala que, cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente. De lo anterior, se advierte que el principio parte de una incertidumbre científica razonable en conjunto con la amenaza de un daño ambiental grave e irreversible. En términos generales, una diferencia relevante entre el principio preventivo y el precautorio radica en el nivel de conocimiento y certeza de los riesgos que una actividad u obra provoque. Mientras que en el primero existe tal certeza, en el segundo lo que se advierte es un estado de duda resultado de informaciones científicas o estudios técnicos. Así, el Estado costarricense se encuentra obligado a adoptar las medidas que garanticen la defensa y preservación efectiva del ambiente conforme a tales principios.

Ahora, tal obligación objetiva no apareja, ineludiblemente, un derecho subjetivo de las personas a exigir, a través de los órganos jurisdiccionales, que se tome una medida determinada, pero sí a que se adopten las que sean idóneas en tutela de ese derecho, ante actitudes abiertamente negligentes de las autoridades, o bien, de personas físicas y jurídicas, conforme la reconocida teoría de la eficacia horizontal de los derechos fundamentales (Drittwirkung der Menschenrechte), entre cuyas manifestaciones procesales se encuentra el amparo contra sujetos de derecho privado.

Interesa también resaltar que la Corte Interamericana de Derechos Humanos, en la Opinión Consultiva OC-23/17 de 15 de noviembre de 2017, desarrolló lo atinente a las obligaciones estatales en relación con el medio ambiente, en aras de la salvaguardia a los derechos humanos consagrados en la Convención Americana sobre Derechos Humanos.

En esa opinión, la Corte reconoció la interrelación entre la protección del medio ambiente y la realización de otros derechos, en tanto la degradación ambiental afecta el goce y desarrollo efectivo de los derechos humanos. En tal sentido, señaló:

“47. Esta Corte ha reconocido la existencia de una relación innegable entre la protección del medio ambiente y la realización de otros derechos humanos, en tanto la degradación ambiental y los efectos adversos del cambio climático afectan el goce efectivo de los derechos humanos. Asimismo, el preámbulo del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales (en adelante “Protocolo de San Salvador”), resalta la estrecha relación entre la vigencia de los derechos económicos, sociales y culturales -que incluye el derecho a un medio ambiente sano - y la de los derechos civiles y políticos, e indica que las diferentes categorías de derechos constituyen un todo indisoluble que encuentra su base en el reconocimiento de la dignidad de la persona humana, por lo cual exigen una tutela y promoción permanente con el objeto de lograr su vigencia plena, sin que jamás pueda justificarse la violación de unos en aras de la realización de otros (…)

49. Por su parte, la Comisión Interamericana ha resaltado que varios derechos de rango fundamental requieren, como una precondición necesaria para su ejercicio, una calidad medioambiental mínima, y se ven afectados en forma profunda por la degradación de los recursos naturales. En el mismo sentido, la Asamblea General de la OEA ha reconocido la estrecha relación entre la protección al medio ambiente y los derechos humanos (supra párr. 22) y destacado que el cambio climático produce efectos adversos en el disfrute de los derechos humanos. 50. En el ámbito europeo, el Tribunal Europeo de Derechos Humanos ha reconocido que la degradación severa del medio ambiente puede afectar el bienestar del individuo y, como consecuencia, generar violaciones a los derechos de las personas, tales como los derechos a la vida, al respeto a la vida privada y familiar68 y a la propiedad privada. De manera similar, la Comisión Africana de Derechos Humanos y de los Pueblos ha indicado que el derecho a un “medio ambiente general satisfactorio, favorable al desarrollo” está estrechamente relacionado con los derechos económicos y sociales en la medida en que el medio ambiente afecta la calidad de vida y la seguridad del individuo (…) 52.

Por otra parte, existe un amplio reconocimiento en el derecho internacional sobre la relación interdependiente entre la protección al medio ambiente, el desarrollo sostenible y los derechos humanos. Dicha interrelación se ha afirmado desde la Declaración de Estocolmo sobre el Medio Ambiente Humano (en adelante “Declaración de Estocolmo”), donde se estableció que “[e]l desarrollo económico y social es indispensable para asegurar al hombre un ambiente de vida y trabajo favorable y crear en la Tierra las condiciones necesarias para mejorar la calidad de la vida”, afirmándose la necesidad de balancear el desarrollo con la protección del medio humano. Posteriormente, en la Declaración de Río sobre el Medio Ambiente y el Desarrollo (en adelante “Declaración de Río”), los Estados reconocieron que “[l]os seres humanos constituyen el centro de las preocupaciones relacionadas con el desarrollo sostenible” y, a la vez, destacaron que “a fin de alcanzar el desarrollo sostenible, la protección del medio ambiente deberá constituir parte integrante del proceso de desarrollo”.

En seguimiento de lo anterior, en la Declaración de Johannesburgo sobre el Desarrollo Sostenible se establecieron los tres pilares del desarrollo sostenible: el desarrollo económico, el desarrollo social y la protección ambiental. Asimismo, en el correspondiente Plan de Aplicación de las Decisiones de la Cumbre Mundial sobre el Desarrollo Sostenible, los Estados reconocieron la consideración que se debe prestar a la posible relación entre el medio ambiente y los derechos humanos, incluido el derecho al desarrollo. 53. Además, al adoptar la Agenda 2030 para el Desarrollo Sostenible, la Asamblea General de las Naciones Unidas reconoció que el alcance de los derechos humanos de todas las personas depende de la consecución de las tres dimensiones del desarrollo sostenible: la económica, social y ambiental. En el mismo sentido, varios instrumentos del ámbito interamericano se han referido a la protección del medio ambiente y el desarrollo sostenible, tales como la Carta Democrática Interamericana la cual prevé que “[e]l ejercicio de la democracia facilita la preservación y el manejo adecuado del medio ambiente”, por lo cual “es esencial que los Estados del Hemisferio implementen políticas y estrategias de protección del medio ambiente, respetando los diversos tratados y convenciones, para lograr un desarrollo sostenible en beneficio de las futuras generaciones” (…) 55.

Como consecuencia de la estrecha conexión entre la protección del medio ambiente, el desarrollo sostenible y los derechos humanos (supra párrs. 47 a 55), actualmente (i) múltiples sistemas de protección de derechos humanos reconocen el derecho al medio ambiente sano como un derecho en sí mismo, particularmente el sistema interamericano de derechos humanos, a la vez que no hay duda que (ii) otros múltiples derechos humanos son vulnerables a la degradación del medio ambiente, todo lo cual conlleva una serie de obligaciones ambientales de los Estados a efectos del cumplimiento de sus obligaciones de respeto y garantía de estos derechos. Precisamente, otra consecuencia de la interdependencia e indivisibilidad entre los derechos humanos y la protección del medio ambiente es que, en la determinación de estas obligaciones estatales, la Corte puede hacer uso de los principios, derechos y obligaciones del derecho ambiental internacional, los cuales como parte del corpus iuris internacional contribuyen en forma decisiva a fijar el alcance de las obligaciones derivadas de la Convención Americana en esta materia (supra párrs. 43 a 45) (…) 59.

El derecho humano a un medio ambiente sano se ha entendido como un derecho con connotaciones tanto individuales como colectivas. En su dimensión colectiva, el derecho a un medio ambiente sano constituye un interés universal, que se debe tanto a las generaciones presentes y futuras. Ahora bien, el derecho al medio ambiente sano también tiene una dimensión individual, en la medida en que su vulneración puede tener repercusiones directas o indirectas sobre las personas debido a su conexidad con otros derechos, tales como el derecho a la salud, la integridad personal o la vida, entre otros. La degradación del medio ambiente puede causar daños irreparables en los seres humanos, por lo cual un medio ambiente sano es un derecho fundamental para la existencia de la humanidad.”.

Esta interrelación entre el medio ambiente y el disfrute de otros derechos humanos también ha sido reconocida por el Consejo de Derechos Humanos de las Naciones Unidas, quien en la resolución A/HRC/RES/46/7, adoptada el 23 de marzo de 2021 en el 46° periodo de sesiones, sostuvo:

“Reconociendo también que el desarrollo sostenible y la protección del medio ambiente, incluidos los ecosistemas, contribuyen al bienestar humano y al disfrute de los derechos humanos, en particular los derechos a la vida, al disfrute del más alto nivel posible de salud física y mental, a un nivel de vida adecuado, a una alimentación adecuada, al agua potable y el saneamiento y a la vivienda, y los derechos culturales.”.

También, recientemente, en la resolución A/HRC/RES/48/13, adoptada el 8 de octubre de 2021, ese Consejo señaló:

“(…) Reconociendo que el desarrollo sostenible, en sus tres dimensiones (social, económica y ambiental), y la protección del medio ambiente, incluidos los ecosistemas, contribuyen al bienestar humano y al disfrute de los derechos humanos y promueven ambos, incluido el disfrute de los derechos a la vida, al más alto nivel posible de salud física y mental, a un nivel de vida adecuado, a una alimentación adecuada, a la vivienda, al agua potable y el saneamiento y a la participación en la vida cultural, para las generaciones presentes y futuras (…)

Reconociendo además que la degradación del medio ambiente, el cambio climático y el desarrollo insostenible son algunas de las amenazas más acuciantes y graves a la capacidad de las generaciones presentes y futuras de disfrutar de los derechos humanos, incluido el derecho a la vida (…)

Reconociendo la importancia de un medio ambiente limpio, saludable y sostenible como algo fundamental para el disfrute de todos los derechos humanos (…)

1. Reconoce el derecho a un medio ambiente limpio, saludable y sostenible como un derecho humano importante para el disfrute de los derechos humanos; 2. Observa que el derecho a un medio ambiente limpio, saludable y sostenible está relacionado con otros derechos y el derecho internacional vigente (…)”. (El resaltado no corresponde al original).

De este modo, se refleja la particular relevancia del derecho fundamental a un ambiente sano y ecológicamente equilibrado, cuya defensa trasciende la protección de este bien constitucional en sí, toda vez que su preservación constituye un factor esencial para el resguardo efectivo de otros bienes primordiales del ser humano (como la vida, la salud, la propiedad, la igualdad), de modo que si en lo primero se falla, el resguardo efectivo de lo segundo no se alcanza.

Allende de lo anterior, la Corte Interamericana de Derechos Humanos, en la opinión supra aludida, reconoció el derecho a un ambiente sano como uno autónomo, susceptible de protección con independencia de algún riesgo de afectación a personas individuales. En tal sentido, dispuso:

“62. Esta Corte considera importante resaltar que el derecho al medio ambiente sano como derecho autónomo, a diferencia de otros derechos, protege los componentes del medio ambiente, tales como bosques, ríos, mares y otros, como intereses jurídicos en sí mismos, aún en ausencia de certeza o evidencia sobre el riesgo a las personas individuales. Se trata de proteger la naturaleza y el medio ambiente no solamente por su conexidad con una utilidad para el ser humano o por los efectos que su degradación podría causar en otros derechos de las personas, como la salud, la vida o la integridad personal, sino por su importancia para los demás organismos vivos con quienes se comparte el planeta, también merecedores de protección en sí mismos. En este sentido, la Corte advierte una tendencia a reconocer personería jurídica y, por ende, derechos a la naturaleza no solo en sentencias judiciales sino incluso en ordenamientos constitucionales. 63. De esta manera, el derecho a un medio ambiente sano como derecho autónomo es distinto al contenido ambiental que surge de la protección de otros derechos, tales como el derecho a la vida o el derecho a la integridad personal.”. (El resaltado no corresponde al original).

Esta tesitura fue adoptada en la sentencia de 6 de febrero de 2020 relativa al caso “Comunidades Indígenas miembros de la Asociación Lhaka Honhat (Nuestra Tierra) vs. Argentina”, en la que, superando un enfoque antropocéntrico, la CorteIDH afirma que el derecho al ambiente sano, amén de ser fundamental para la propia existencia del ser humano, constituye un derecho autónomo y universal, de manera que la protección a diversos componentes del ambiente (como bosques, mares, ríos y otros) configura un interés jurídico por sí mismo. En palabras de la CorteIDH: “Se trata de proteger la naturaleza”, no solo por su “utilidad” o “efectos” respecto de los seres humanos, “sino por su importancia para los demás organismos vivos con quienes se comparte el planeta.” Dada la trascendencia de esta afirmación, resulta oportuno transcribir este apartado de la referida resolución:

“203. La Corte ya se ha referido al contenido y alcance de este derecho, considerando diversas normas relevantes, en su Opinión Consultiva OC-23/17, por lo que se remite a dicho pronunciamiento. Afirmó en esa oportunidad que el derecho a un medio ambiente sano “constituye un interés universal” y “es un derecho fundamental para la existencia de la humanidad”, y que “como derecho autónomo […] protege los componentes del […] ambiente, tales como bosques, mares, ríos y otros, como intereses jurídicos en sí mismos, aun en ausencia de certeza o evidencia sobre el riesgo a las personas individuales. Se trata de proteger la naturaleza”, no solo por su “utilidad” o “efectos” respecto de los seres humanos, “sino por su importancia para los demás organismos vivos con quienes se comparte el planeta”. Lo anterior no obsta, desde luego, a que otros derechos humanos puedan ser vulnerados como consecuencia de daños ambientales.”. (El resaltado no corresponde al original).

Con base en lo expuesto, esta Sala, como garante de los derechos fundamentales, debe velar por el respeto a las obligaciones convencionales y constitucionales, que constriñen al Estado no solo a reconocer los derechos ahí consagrados, sino también a imponer las medidas jurídicas requeridas para su resguardo” (el resaltado es del original).

Aunado a lo anterior, recientemente, la Asamblea General de las Naciones Unidad adoptó la resolución nro. A/RES/76/1-A/RES/76/300 del 28 de julio de 2022, en la que se consignó:

“1. Reconoce el derecho a un medio ambiente limpio, saludable y sostenible como un derecho humano; 2. Observa que el derecho a un medio ambiente limpio, saludable y sostenible está relacionado con otros derechos y el derecho internacional vigente; 3. Afirma que la promoción del derecho humano a un medio ambiente limpio, saludable y sostenible requiere la plena aplicación de los acuerdos multilaterales relativos al medio ambiente con arreglo a los principios del derecho ambiental internacional; 4. Exhorta a los Estados, las organizaciones internacionales, las empresas y otros interesados pertinentes a que adopten políticas, aumenten la cooperación internacional, refuercen la creación de capacidad y sigan compartiendo buenas prácticas con el fin de intensificar los esfuerzos para garantizar un medio ambiente limpio, saludable y sostenible para todos”.

Esta resolución es la expresión formal de la voluntad del órgano principal de deliberación, adopción de políticas y representación de la Organización de Naciones Unidas. En consecuencia, constituye un compromiso político de carácter universal que debe ser valorado como fuente de soft law de la mayor relevancia.

Precisamente, la resolución nro. A/RES/76/1-A/RES/76/300 afirma que el derecho a un ambiente sano y ecológicamente equilibrado tiene naturaleza de derecho humano. Con esto, en buena medida contribuye a su positivización, de lo que resulta su comprensión técnica como “derecho fundamental”. Asimismo, robustece la noción de que la protección al ambiente es un derecho humano “autónomo”, esto es, que vale por sí mismo, de manera que, por un lado, tiene una existencia conceptual propia y distinta al contenido ambiental que sin duda surge de la protección de otros derechos (como la vida o la salud) y, por otro, su objeto de protección trasciende al ser humano, puesto que brinda cobijo a los diversos componentes de la naturaleza debido a su trascendencia para preservar la existencia de los organismos vivos en general, independientemente de su utilidad para con los seres humanos.

Asimismo, reitera y, por esa vía, fortalece la tesitura de que el derecho a un ambiente sano y ecológicamente equilibrado se encuentra vinculado con otros derechos humanos, lo que implica que su transgresión puede acarrear la vulneración de la salud, la vida, el desarrollo sostenible democrático, por citar tan solo algunos ejemplos. Lo anterior confiere un significado jurídico particularmente relevante al derecho de marras.

En adición, la Asamblea General de la ONU preceptúa que la protección al derecho a un ambiente sano y ecológicamente equilibrado demanda la plena aplicación de los derechos convencionales relacionados con el ambiente en consonancia con los principios del derecho ambiental internacional. De lo anterior se colige su imprescindible inclusión dentro del control jurisdiccional de constitucionalidad por parte de esta Sala.

Por último, en armonía con la reconocida teoría de la eficacia horizontal de los derechos fundamentales (Drittwirkung der Menschenrechte), la resolución nro. A/RES/76/1-A/RES/76/300 regula que la obligación de resguardar al ambiente, allende de los estados, se extiende a organizaciones internacionales, empresas y otros interesados, término último que comprende a los seres humanos en general. Justamente es en ese sentido, que la Ley de la Jurisdicción Constitucional contempla el amparo contra sujetos de derecho privado.

En suma, bajo el marco conceptual explicado ut supra, este Tribunal Constitucional, como garante de los derechos fundamentales, debe velar por el cumplimiento de los compromisos convencionales y constitucionales que al Estado costarricense y a la sociedad en general le imponen no solo la obligación de reconocer los derechos, principios y valores de la materia ambiental, sino también la de implementar todas aquellas medidas y actuaciones que se precisan para asegurar la efectiva protección a aquellos” (el resaltado es del original).

Asimismo, las áreas silvestres protegidas han sido conceptualizadas por la Comisión Mundial de Áreas Protegidas de la Unión Internacional para la Conservación de la Naturaleza (UICN) como un espacio geográfico claramente definido, reconocido, dedicado y gestionado, mediante medios legales u otros tipos de medios eficaces para conseguir la conservación a largo plazo de la naturaleza y de sus servicios ecosistémicos y sus valores culturales asociados. Ello implica que la superficie de las áreas silvestres protegidas incluye zonas terrestres, aguas continentales, marinas y costeras, o una combinación de estas, la cual ha sido reconocida como tal y, por ende, goza de protección jurídica en procura de su conservación. Cabe indicar que Costa Rica es miembro de la UICN desde 1980 en virtud de gestiones efectuadas por el Ministerio de Energía y Minas y por el de Relaciones Exteriores y Culto. Asimismo, por medio del artículo 1º de la ley nro. 7350 del 6 de julio de 1993, denominada ‘Acuerdo con la Unión Internacional para la Conservación de Naturaleza y Recursos Naturales (U.I.C.N.) para el establecimiento de su Sede Regional para Centroamérica’, el Gobierno de Costa Rica reconoció a tal organismo “personalidad jurídica plena para efectos del derecho costarricense”.

En Costa Rica, según el ordinal 58 de la ley nro. 7788 del 30 de abril de 1998 ‘Ley de Biodiversidad’, las áreas silvestres protegidas son zonas geográficas delimitadas, constituidas por terrenos, humedales y porciones de mar, que han sido declaradas como tales por su significado especial para con los ecosistemas, la preservación de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural. Además, tales áreas deben estar dedicadas a la conservación y protección de la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general. Asimismo, de acuerdo con esa norma, los informes técnicos correspondientes para establecer áreas silvestres protegidas deben contener las recomendaciones y justificaciones pertinentes “para determinar la categoría de manejo más apropiada a que el área propuesta debe someterse”.

En cuanto a las áreas protegidas, resulta de importancia mencionar que el ‘Convenio sobre Diversidad Biológica y sus Anexos’ adoptado en Río de Janeiro en 1992, aprobado por Costa Rica mediante la ley nro. 7416 30 de junio de 1994, regula:

“ARTÍCULO 1. Objetivos Los objetivos del presente Convenio, que se han de perseguir de conformidad con sus disposiciones pertinentes, son la conservación de la diversidad biológica, la utilización sostenible de sus componentes y la participación justa y equitativa en los beneficios que se deriven de la utilización de los recursos genéticos, mediante, entre otras cosas, un acceso adecuado a esos recursos y una transferencia apropiada de las tecnologías pertinentes, teniendo en cuenta todos los derechos sobre esos recursos y a esas tecnologías, así como mediante una financiación apropiada (…)

ARTÍCULO 2. Términos utilizados A los efectos del presente Convenio:

Por "área protegida" se entiende un área definida geográficamente que haya sido designada o regulada y administrada a fin de alcanzar objetivos específicos de conservación (…)

ARTÍCULO 8. Conservación in situ Cada Parte Contratante, en la medida de lo posible y según proceda:

• a)Establecerá un sistema de áreas protegidas o áreas donde haya que tomar medidas especiales para conservar la diversidad biológica.
• b)Cuando sea necesario, elaborará directrices para la selección, el establecimiento y la ordenación de áreas protegidas o áreas donde haya que tomar medidas especiales para conservar la diversidad biológica.
• c)Reglamentará o administrará los recursos biológicos importantes para la conservación de la diversidad biológica, ya sea dentro o fuera de las áreas protegidas, para garantizar su conservación y utilización sostenible.
• d)Promoverá la protección de ecosistemas y hábitats naturales y el mantenimiento de poblaciones viables de especies en entornos naturales.
• e)Promoverá un desarrollo ambientalmente adecuado y sostenible en zonas adyacentes a áreas protegidas, con miras a aumentar la protección de esas zonas.
• f)Rehabilitará y restaurará ecosistemas degradados y promoverá la recuperación de especies amenazadas, entre otras cosas mediante la elaboración y la aplicación de planes u otras estrategias de ordenación.
• g)Establecerá o mantendrá medios para regular, administrar o controlar los riesgos derivados de la utilización y la liberación de organismos vivos modificados como resultado de la biotecnología que es probable tengan repercusiones ambientales adversas que puedan afectar a la conservación y a la utilización sostenible de la diversidad biológica, teniendo también en cuenta los riesgos para la salud humana.
• h)Impedirá que se introduzcan, controlará o erradicará las especies exóticas que amenacen a ecosistemas, hábitats o especies.
• i)Procurará establecer las condiciones necesarias para armonizar las utilizaciones actuales con la conservación de la diversidad biológica y la utilización sostenible de sus componentes.
• j)Con arreglo a su legislación nacional, respetará, preservará y mantendrá los conocimientos, las innovaciones y las prácticas de las comunidades indígenas y locales que entrañen estilos tradicionales de vida pertinentes para la conservación y la utilización sostenible de la diversidad biológica y promoverá su aplicación más amplia, con la aprobación y la participación de quienes posean esos conocimientos, innovaciones y prácticas, y fomentará que los beneficios derivados de la utilización de esos conocimientos, innovaciones y prácticas se compartan equitativamente.
• k)Establecerá o mantendrá la legislación necesaria y/u otras disposiciones de reglamentación para la protección de especies y poblaciones amenazadas.
• l)Cuando se haya determinado, de conformidad con el artículo 7, un efecto adverso importante para la diversidad biológica, reglamentará u ordenará los procesos y categorías de actividades pertinentes. Y m) Cooperará en el suministro de apoyo financiero y de otra naturaleza para la conservación in situ a que se refieren los apartados a) a l) de este artículo, particularmente a países en desarrollo (…)

ARTÍCULO 10. Utilización sostenible de los componentes de la diversidad biológica Cada Parte Contratante, en la medida de lo posible y según proceda:

• a)Integrará el examen de la conservación y la utilización sostenible de los recursos biológicos en los procesos nacionales de adopción de decisiones.
• b)Adoptará medidas relativas a la utilización de los recursos biológicos para evitar o reducir al mínimo los efectos adversos para la diversidad biológica.
• c)Protegerá y alentará la utilización consuetudinaria de los recursos biológicos, de conformidad con las prácticas culturales tradicionales que sean compatibles con las exigencias de la conservación o de la utilización sostenible.
• d)Prestará ayuda a las poblaciones locales para preparar y aplicar medidas correctivas en las zonas degradadas donde la diversidad biológica se ha reducido. Y e) Fomentará la cooperación entre sus autoridades gubernamentales y su sector privado en la elaboración de métodos para la utilización sostenible de los recursos biológicos (…)

ARTÍCULO 12. Investigación y capacitación Las Partes Contratantes, teniendo en cuenta las necesidades especiales de los países en desarrollo:

• a)Establecerán y mantendrán programas de educación y capacitación científica y técnica en medidas de identificación, conservación y utilización sostenible de la diversidad biológica y sus componentes, y prestarán apoyo para tal fin centrado en las necesidades específicas de los países en desarrollo.
• b)Promoverán y fomentarán la investigación que contribuya a la conservación y a la utilización sostenible de la diversidad biológica, particularmente en los países en desarrollo, entre otras cosas, de conformidad con las decisiones adoptadas por la Conferencia de las Partes a raíz de las recomendaciones del órgano subsidiario de asesoramiento científico, técnico y tecnológico. Y c) De conformidad con las disposiciones de los artículos 16, 18 y 20, promoverán la utilización de los adelantos científicos en materia de investigaciones sobre diversidad biológica para la elaboración de métodos de conservación y utilización sostenible de los recursos biológicos, y cooperarán en esa esfera (…)

ARTÍCULO 14. Evaluación del impacto y reducción al mínimo del impacto adverso

1. 1Cada Parte Contratante, en la medida de lo posible y según proceda:

• a)Establecerá procedimientos apropiados por los que se exija la evaluación del impacto ambiental de sus proyectos propuestos que puedan tener efectos adversos importantes para la diversidad biológica con miras a evitar o reducir al mínimo esos efectos y, cuando proceda, permitirá la participación del público en esos procedimientos.
• b)Establecerá arreglos apropiados para asegurarse de que se tengan debidamente en cuenta las consecuencias ambientales de sus programas y políticas que puedan tener efectos adversos importantes para la diversidad biológica.
• c)Promoverá, con carácter recíproco, la notificación, el intercambio de información y las consultas acerca de las actividades bajo su jurisdicción o control que previsiblemente tendrían efectos adversos importantes para la diversidad biológica de otros Estados o de zonas no sujetas a jurisdicción nacional, alentando la concertación de acuerdos bilaterales, regionales o multilaterales, según proceda.
• d)Notificará inmediatamente, en caso de que se originen bajo su jurisdicción o control peligros inminentes o graves para la diversidad biológica o daños a esa diversidad en la zona bajo la jurisdicción de otros Estados o en zonas más allá de los límites de la jurisdicción nacional, a los Estados que puedan verse afectados por esos peligros o esos daños, además de iniciar medidas para prevenir o reducir al mínimo esos peligros o esos daños. Y e) Promoverá arreglos nacionales sobre medidas de emergencia relacionadas con actividades o acontecimientos naturales o de otra índole que entrañen graves e inminentes peligros para la diversidad biológica, apoyará la cooperación internacional para complementar esas medidas nacionales y, cuando proceda y con el acuerdo de los Estados o las organizaciones regionales de integración económica interesados, establecerá planes conjuntos para situaciones imprevistas.

1. 2La Conferencia de las Partes examinará, sobre la base de estudios que se llevarán a cabo, la cuestión de la responsabilidad y reparación, incluso el restablecimiento y la indemnización por daños causados a la diversidad biológica, salvo cuando esa responsabilidad sea una cuestión puramente interna” (el énfasis fue incorporado).

La suma de las áreas protegidas de un país, independientemente de su categoría de gestión o de su sistema de manejo o gobernanza, es entendida como el sistema de áreas protegidas. Mediante este se pretende la consecución de objetivos nacionales de conservación y, para tales efectos, posee varias características, a saber: i) la representatividad, la totalidad y el equilibrio; ii) la adecuación; iii) la coherencia y complementariedad; iv) la consistencia; v) la rentabilidad, eficiencia y equidad; vi) la persistencia; y vii) la resiliencia.

A nivel tanto mundial como nacional se han creado categorías de manejo o gestión de las áreas silvestres protegidas, que constituyen un elemento de gran relevancia para cumplir los fines de manejo concretos de cada área silvestre protegida, dado que coadyuvan en la organización para alcanzar los objetivos de conservación. Justamente, la Procuraduría General de la República, en el dictamen nro. C-016-2002 del 15 de enero de 2002, aclara que: “(…) aún (sic) y cuando no existe en nuestra legislación vigente una definición técnica de zona protectora, la sola clasificación que el artículo 32 de la Ley No. 7554 hace de las categorías de manejo, lleva a pensar necesariamente que sí existen diferencias entre ellas, ya que, de lo contrario, habría bastado con enunciar un régimen único de áreas silvestres protegidas. Y es lógico que así sea, toda vez que cada área silvestre tiene sus propias características desde el punto de vista biológico, edáfico, hidrológico, etc., que la hacen merecedora de un régimen particular de tratamiento definido por la categoría de manejo asignada” (el resaltado fue agregado).

De este modo, las categorías de gestión tienen rasgos particulares que las diferencian unas de otras, como las especificidades que poseen desde el punto de vista biológico, edáfico e hidrológico, así como las diversas formas previstas de administración, manejo, planificación, usos y prohibiciones, todo lo cual está relacionado tanto con el nivel de intervención humana autorizado como con el de protección que se otorga al espacio geográfico correspondiente.

A su vez, las categorías de manejo de las áreas silvestres protegidas, al ser consideradas como tales, persiguen ciertos objetivos en común, verbigracia: i) conservar la biodiversidad; ii) colaborar con las estrategias de conservación regionales; iii) mantener la diversidad de hábitats, especies y ecosistemas vinculados; iv) procurar la integridad y mantenimiento a largo plazo, a fin de lograr los objetivos de conservación; v) mantener los valores impuestos; vi) respetar el plan de gestión asignado; y vii) tener un sistema de manejo específico.

En Costa Rica, el artículo 35 de la ley nro. 7554 del 4 de octubre de 1995 denominada ‘Ley Orgánica del Ambiente’ precisa los objetivos de la creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, que naturalmente comprende a todas las categorías de manejo de las áreas silvestres protegidas, a saber: i) conservar los ambientes naturales representativos de las diferentes regiones biogeográficas y de los ecosistemas más frágiles, para asegurar el equilibrio y la continuidad de los procesos evolutivos y ecológicos; ii) salvaguardar la diversidad genética de las especies silvestres de las que depende la continuidad evolutiva, particularmente las endémicas, amenazadas o en peligro de extinción; iii) asegurar el uso sostenible de los ecosistemas y sus elementos, fomentando la activa participación de las comunidades vecinas; iv) promover la investigación científica, el estudio de los ecosistemas y su equilibrio, así como el conocimiento y las tecnologías que permitan el uso sostenible de los recursos naturales del país y su conservación; v) proteger y mejorar las zonas acuíferas y las cuencas hidrográficas, para reducir y evitar el impacto negativo que puede ocasionar su mal manejo; y vi) proteger los entornos naturales y paisajísticos de los sitios y centros históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico, de importancia para la cultura y la identidad nacional.

Para la consecución de tales objetivos, en el decreto ejecutivo nro. 34433 del 11 de marzo de 2008 ‘Reglamento a la Ley de Biodiversidad’ se estatuye que el “Plan general de manejo: Es el instrumento de planificación que permite orientar la gestión de un área silvestre protegida hacia el cumplimiento de sus objetivos de conservación a largo plazo. Se fundamenta en líneas de acción estratégicas a mediano plazo y en objetivos de manejo para los elementos naturales y culturales incluidos dentro del área, así como en la relación de estos últimos con su entorno socio ambiental. Es la base para el desarrollo de otros instrumentos de planificación y reglamentación de las Áreas Silvestres Protegidas”. El referido plan general de manejo contempla varios elementos de gestión, que incluyen: la misión, la visión y los objetivos de conservación del área silvestre protegida, una evaluación del área silvestre y del entorno en el que se encuentra, programas de manejo, análisis de amenazas y riesgos, así como la organización de la superficie de acuerdo con las características del ecosistema, las especies, las actividades proscritas y autorizadas.

En cuanto a las categorías de manejo o gestión de áreas silvestres protegidas, la UICN ha mencionado las siguientes: ia) la reserva natural estricta, ib) área silvestre, ii) parque nacional, iii) monumento, iv) áreas de gestión de hábitats/especies, v) paisaje protegido y vi) área protegida con uso sostenible de los recursos naturales.

Las reservas naturales estrictas se entienden como aquellas “áreas estrictamente protegidas reservadas para proteger la biodiversidad así como los rasgos geológicos/geomorfológicos en las cuales las visitas, el uso y los impactos están estrictamente controlados y limitados para asegurar la protección de los valores de conservación. Estas áreas protegidas pueden servir como áreas de referencia indispensables para la investigación científica y el monitoreo”. Mientras que las áreas silvestres de categoría ib) son definidas como “áreas no modificadas o ligeramente modificadas de gran tamaño, que retienen su carácter e influencia natural, sin asentamientos humanos significativos o permanentes, que están protegidas y gestionadas para preservar su condición natural”.

La UICN conceptualiza los parques nacionales como “grandes áreas naturales o casi naturales establecidas para proteger procesos ecológicos a gran escala, junto con el complemento de especies y ecosistemas característicos del área, que también proporcionan la base para oportunidades espirituales, científicas, educativas, recreativas y de visita que sean ambiental y culturalmente compatibles”. Entre los objetivos asignados a este tipo de área silvestre protegida se encuentran la protección de la biodiversidad y los procesos ambientales, así como la promoción de la educación y el uso recreativo.

La categoría iii) monumento o característica natural refiere a las áreas protegidas que “se establecen para proteger un monumento natural concreto, que puede ser una formación terrestre, una montaña submarina, una caverna submarina, un rasgo geológico como una cueva o incluso un elemento vivo como una arboleda antigua. Normalmente son áreas protegidas bastante pequeñas y a menudo tienen un gran valor para los visitantes”.

A su vez, las áreas de gestión de hábitats/especies tienen como objetivo: “la protección de hábitats o especies concretas y su gestión refleja dicha prioridad. Muchas áreas protegidas de categoría IV van a necesitar intervenciones activas habituales para abordar las necesidades de especies concretas o para mantener hábitats, pero esto no es un requisito de la categoría”.

Por su parte, el paisaje terrestre/marino protegido es “Un área protegida en la que la interacción entre los seres humanos y la naturaleza ha producido un área de carácter distintivo con valores ecológicos, biológicos, culturales y estéticos significativos; y en la que salvaguardar la integridad de dicha interacción es vital para proteger y mantener el área, la conservación de su naturaleza y otros valores”.

Finalmente, las áreas protegidas con uso sostenible de los recursos naturales “conservan ecosistemas y hábitats, junto con los valores culturales y los sistemas tradicionales de gestión de recursos naturales asociados a ellos. Normalmente son extensas, con una mayoría del área en condiciones naturales, en las que una parte cuenta con una gestión sostenible de los recursos naturales, y en las que se considera que uno de los objetivos principales del área es el uso no industrial y de bajo nivel de los recursos naturales, compatible con la conservación de la naturaleza”.

Propiamente en Costa Rica, el numeral 32 de la Ley Orgánica del Ambiente regula la clasificación de las categorías de manejo de las áreas silvestres protegidas de esta forma: i) reservas forestales, ii) zonas protectoras, iii) parques nacionales, iv) reservas biológicas, v) refugios nacionales de vida silvestre, vi) humedales y vii) monumentos nacionales. En desarrollo de esto, en el Reglamento a la Ley de Biodiversidad se consignan las conceptualizaciones de tales categorías.

Acerca de la reserva forestal, esta comprende las áreas geográficas formadas por bosques o terrenos de aptitud forestal, cuyo fin principal es la protección de los recursos genéticos forestales para asegurar la producción nacional sostenible de los recursos forestales en el largo plazo, y por aquellos terrenos forestales que por su naturaleza sean especialmente aptos para ese fin.

De otro lado, las zonas protectoras hacen referencia a las áreas geográficas formadas por los bosques o terrenos de aptitud forestal, en los que el objetivo principal es la regulación del régimen hidrológico, la protección del suelo y de las cuencas hidrográficas. De conformidad con el ordinal 52 de la ley Orgánica del Ambiente, esta categoría de manejo tiene dentro de sus fines “la preservación de las áreas de recarga acuífera y las fuentes de agua y la necesidad de asegurar el abastecimiento poblacional de agua para las actuales y futuras generaciones”. Además, en atención a sus características, en esta categoría de manejo es posible que exista propiedad privada, dado que no es necesario que el Estado efectúe su compra o expropiación. Adicionalmente, en la zona protectora se autoriza a los propietarios una serie de actividades dentro de sus terrenos, entre ellas, ecoturismo, investigación, educación, construcción de obra pública y el otorgamiento de concesiones y permisos, siempre que sean compatibles con el plan general de manejo de esa categoría de gestión.

A su vez, los parques nacionales son entendidos como áreas geográficas, terrestres, marinas, marino-costeras, de agua dulce o una combinación de estas, de importancia nacional, estatuidas para la protección y la conservación de las bellezas naturales y la biodiversidad, así como para el disfrute del público. Estas áreas presentan uno o varios ecosistemas, en los que las especies, los hábitats y los sitios geomorfológicos son de especial interés científico, cultural, educativo y recreativo o contienen un paisaje natural de gran belleza.

En cuanto a este punto, el artículo 2 de la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ define los parques nacionales como aquellas regiones previstas para la protección y conservación de las bellezas naturales y de la flora y la fauna de importancia nacional, que el público pueda disfrutar mejor al ser puestas bajo la vigilancia oficial. También subraya que las riquezas existentes en esas áreas silvestres protegidas no se pueden explotar con fines comerciales, así como que los Estados convienen en prohibir la “la caza, la matanza y la captura de especímenes de la fauna y la destrucción y recolección de ejemplares de la flora en los parques nacionales, excepto cuando se haga por las autoridades del parque o por orden o bajo la vigilancia de las mismas o para investigaciones científicas debidamente autorizadas”.

De acuerdo con el numeral 8 de la ley nro. 6084 del 24 de agosto de 1977 ‘Ley del Servicio de Parques Nacionales’, en esa categoría de área silvestre protegida se prohíbe a los visitantes: i) talar árboles y extraer plantas o cualquier otro producto forestal; ii) cazar o capturar animales silvestres, así como recolectar o extraer cualquiera de sus productos o despojos; iii) cazar tortugas de cualquier especie y recolectar o extraer sus huevos o cualquier tipo de producto o despojo; iv) rayar, marcar, manchar o provocar cualquier tipo de daño o deterioro a las plantas, los equipos o instalaciones; v) pescar deportiva, artesanal o industrialmente, salvo lo indicado en el ordinal 10; vi) recolectar o extraer corales, conchas, rocas o cualquier otro producto o desecho del mar; vii) recolectar o extraer rocas, minerales, fósiles o cualquier otro producto geológico; viii) portar armas de fuego, arpones y cualquier otro instrumento que pueda ser usado para cacería; ix) introducir animales o plantas exóticas; x) pastorear y abrevar ganado o criar abejas; xi) provocar cualquier tipo de contaminación ambiental; xii) extraer piedras, arenas, grava o productos semejantes; xiii) dar de comer o beber a los animales; xiv) construir líneas de conducción eléctrica o telefónica, acueductos o carreteras o vías férreas; xv) realizar cualquier tipo de actividad comercial, agrícola o industrial.

Igualmente, el artículo 11 eiusdem proscribe la constitución de servidumbres a favor de fundos, mientras que, según el numeral 12, no pueden otorgarse concesiones de ningún tipo para la explotación de productos de los parques nacionales, ni otorgarse permiso para establecer otras instalaciones que las del Servicio.

Respecto a la pesca deportiva y artesanal en los parques nacionales, el ordinal 10 eiusdem dispone: “El Servicio podrá, previo dictamen afirmativo del consejo, autorizar la pesca deportiva y artesanal en determinadas áreas de los parques nacionales, cuando se compruebe que no producirán alteraciones ecológicas”. Concerniente a la actividad pesquera, la ley nro. 8436 del 1º de marzo de 2005 ‘Ley de Pesca y Acuicultura’ prevé que:

“Artículo 9º-Prohíbense el ejercicio de la actividad pesquera con fines comerciales y la pesca deportiva en parques nacionales, monumentos naturales y reservas biológicas.

El ejercicio de la actividad pesquera en la parte continental e insular, en las reservas forestales, zonas protectoras, refugios nacionales de vida silvestre y humedales, estará restringido de conformidad con los planes de manejo, que determine para cada zona el Ministerio de Ambiente y Energía (MINAE), en el ámbito de sus atribuciones. Para crear o ampliar zonas protegidas que cubran áreas marinas, salvo las que apruebe la Asamblea Legislativa de conformidad con las leyes vigentes, el Ministerio deberá consultar el criterio del INCOPESCA, acerca del uso sostenible de los recursos biológicos en estas zonas.

La opinión que el INCOPESCA externe deberá estar fundamentada en criterios técnicos, sociales y económicos, científicos y ecológicos, y ser emitida dentro del plazo de treinta días naturales, contados a partir de la fecha de recibida la consulta.

La vigilancia de la pesca en las áreas silvestres protegidas indicadas en este artículo, le corresponderá al MINAE, que podrá coordinar los operativos con el Servicio Nacional de Guardacostas.

Se permitirá a las embarcaciones permanecer en las áreas protegidas con porción marina o sin ella, en los supuestos de caso fortuito y fuerza mayor, mientras duren tales situaciones.

El MINAE y el INCOPESCA podrán autorizar, conjuntamente, el tránsito o fondeo de embarcaciones en áreas protegidas, cuando las condiciones naturales estrictamente lo requieran (…)

Artículo 13.-El INCOPESCA ejercerá el control de la actividad pesquera y acuícola que se realice en aguas marinas e interiores y brindará asistencia técnica a la actividad acuícola en aguas continentales y marinas. En aguas continentales, la protección de los recursos acuáticos le corresponderá al MINAE. Dentro de estas últimas estarán comprendidos los ríos y sus desembocaduras, los lagos, las lagunas y los embalses, incluso las áreas declaradas como reservas forestales, zonas protectoras, parques nacionales, manglares, humedales, reservas biológicas, refugios nacionales de vida silvestre y monumentos naturales, con apego a la legislación vigente y a lo dispuesto en los tratados internacionales ratificados, en especial en el RAMSAR.

Se faculta al MINAE y al INCOPESCA para que, de común acuerdo, establezcan y aprueben, planes de manejo conjunto de recursos marinos de los humedales para el aprovechamiento racional de los recursos acuáticos, excepto en los comprendidos en parques nacionales y reservas biológicas (…)

Artículo 48.-Las licencias para capturar camarones con fines comerciales en el mar Caribe, serán permitidas de conformidad con los criterios técnicos y científicos que emita la autoridad ejecutora. No se darán licencias para la captura en los parques nacionales y otras áreas protegidas”.

Atinente a las reservas biológicas, se trata de áreas geográficas con ecosistemas terrestres, marinos, marino-costeros, de agua dulce, o una combinación de estos y especies de interés particular para la conservación. Entre sus fines principales se prevén la conservación, la protección de la biodiversidad y la investigación. Consecuentemente, ahí están proscritas las actividades agrícolas, turísticas, comerciales e industriales.

Acerca de los refugios nacionales de vida silvestre, se conciben como áreas geográficas que poseen ecosistemas terrestres, marinos, marino-costeros, de agua dulce o una combinación de estos. Entre sus fines principales están la conservación, la investigación, el incremento y el manejo de la flora y la fauna silvestres, en especial de las que se encuentren en vías de extinción.

Cabe señalar que este tipo de categoría de manejo puede ser: i) De propiedad estatal, por lo que son bienes demaniales y su administración corresponde exclusivamente al SINAC. Aquí prevalece la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentren declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. Además, únicamente se permite la ejecución de labores de investigación, capacitación y ecoturismo. ii) De propiedad privada, cuya superficie pertenece a particulares y su administración corresponde a sus propietarios bajo la supervisión del SINAC. En los refugios de propiedad privada se pretende la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentran declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas.

Adicionalmente, en esta clase de refugio solo se pueden realizar actividades productivas según lo establece el Reglamento de la Ley de Conservación de la Vida Silvestre. iii) De propiedad mixta, en los que el espacio geográfico pertenece en una parte al Estado y en otra a particulares, de modo que la administración es compartida. Esta clase de refugio tiene como fines la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentran declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. Debido a su naturaleza mixta, en los terrenos de propiedad del Estado solo se pueden realizar las actividades indicadas para los refugios de propiedad estatal, mientras que en los de propiedad privada es viable desarrollar las actividades previstas para los refugios de propiedad privada.

Sobre los humedales, son áreas geográficas que abrazan ecosistemas de importancia nacional con dependencia de regímenes acuáticos, naturales o artificiales, permanentes o temporales, lénticos o lóticos, dulces, salobres o salados, incluyendo las extensiones marinas hasta el límite posterior de fanerógamas marinas o arrecifes de coral o, en su ausencia, hasta seis metros de profundidad en marea baja, cuya función principal es la protección de esos ecosistemas para asegurar el mantenimiento de sus funciones ecológicas y la provisión de bienes y servicios ambientales. Además, según el artículo 41 de la Ley Orgánica del Ambiente, los humedales y su conservación revisten interés público, independientemente de si están o no protegidos por leyes que rijan la materia. Por su parte, el ordinal 7 de la Ley de Conservación de la Vida Silvestre contempla entre las funciones del SINAC la de “Proteger, supervisar y administrar, con enfoque ecosistémico los humedales, así como determinar su calificación de importancia nacional o internacional”. En este tipo de área silvestre protegida es posible llevar a cabo actividades de educación, investigación, ecoturismo, uso de agua, aprovechamiento forestal, entre otras.

Por último, los monumentos nacionales son áreas geográficas que comprenden uno o varios elementos naturales de importancia nacional o cantonal, creados por el MINAE y administrados por las respectivas municipalidades. Tal categoría de manejo incluye lugares u objetos naturales que, por su carácter único o excepcional, su belleza escénica o su valor científico, se considera necesario su incorporación a un régimen de protección.

De lo expuesto se desprende que las diversas categorías de manejo o gestión de las áreas silvestres protegidas comparten varios objetivos, entre los que naturalmente destaca la conservación; empero, también tienen especificidades que las distinguen y explican el porqué de la clasificación, como los fines particulares que cada una persigue (y que científicamente las distinguen entre sí), así como el régimen de administración, planificación, usos y prohibiciones que contemplan. Por ello, previo a definir la categoría de manejo que corresponde asignar a un determinado espacio geográfico que pasará a ser un área silvestre protegida, deviene fundamental considerar sus características y requerimientos de protección particulares, así como los objetivos principales de gestión de las diversas categorías, a fin de establecer cuál de estas viene a ser la más compatible con la zona que se pretende afectar. En otras palabras, para establecer el tipo de categoría a asignar a determinada superficie es imprescindible analizar de previo la compatibilidad del objetivo de gestión particular con aspectos como las necesidades y los peligros del ecosistema, así como las especies del espacio geográfico en cuestión.

Precisamente, la Comisión Mundial de Áreas Protegidas de la UICN ha enumerado algunas cuestiones que requieren de estudios técnicos antes de asignar cierta categoría de manejo a un espacio geográfico, como por ejemplo: i) estudiar las necesidades ecológicas del ecosistema y las especies; ii) determinar las posibles amenazas; iii) analizar los objetivos del área protegida y las denominaciones internacionales previstas; iv) ejecutar un proceso de revisión de las categorías de manejo; v) evitar consecuencias negativas en el ecosistema y las especies; vi) estimar tanto el paisaje marino como terrestre; vii) considerar la opinión de actores directos; entre otros.

Por su parte, la Ley Orgánica del Ambiente contempla estos requisitos para la creación de áreas silvestres protegidas: i) efectuar estudios preliminares fisiogeográficos, de diversidad biológica y socioeconómicos, que la justifiquen; ii) definir los objetivos y ubicación del área; iii) examinar la factibilidad técnica y la tenencia de la tierra; iv) contar con el financiamiento mínimo para adquirir el área, protegerla y manejarla; v) confeccionar los planos; y vi) dictar el decreto o la ley correspondiente.

De esta forma, para nosotros queda plenamente acreditado que la creación de áreas silvestres protegidas y la asignación del respectivo plan de manejo no responde al libre arbitrio del Estado, sino que es ineludible respetar una serie de requisitos que incluyen estudios científicos ambientales, la determinación de los objetivos y del financiamiento mínimo, análisis socioeconómico, geográfico, geológico y topográfico, entre otros. Lo anterior se requiere a fin de garantizar que los elementos distintivos y objetivos específicos de determinada zona sean los factores decisivos para definir el tipo de administración, la planificación, los usos y las prohibiciones a imponer en el espacio geográfico correspondiente.

En consonancia con la tesitura expuesta y concerniente a la reducción de las áreas silvestres protegidas, este Tribunal indicó en la sentencia nro. 2019000673 de las 12:00 horas del 16 de enero de 2019:

“V.- Jurisprudencia sobre la reducción de áreas protegidas, la suficiencia de los informes técnicos y la debida compensación.- Sobre la reducción de zonas protegidas, de la jurisprudencia de esta Sala se tiene lo siguiente:

1. Requisitos constitucionales para la reducción de área silvestre protegida (reserva legal y estudios técnicos): En apoyo del artículo 38 de la Ley Orgánica del Ambiente (“la superficie de las áreas silvestres protegidas, patrimonio natural del Estado, cualquiera sea su categoría de manejo, sólo (sic) podrá reducirse por Ley de la República, después de realizar los estudios técnicos que justifiquen esta medida”), ha habido una sólida línea jurisprudencial, en el sentido de que para la reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse dos requisitos esenciales: “por medio de ley y previa realización de estudios técnicos suficientes que justifiquen la medida.” (Sala Constitucional, votos números 13367-2012 y 010158-2013. En similar sentido, las sentencias números 7294-1998, 11155-2007, 1056-2009, 18702-2010 y 14772-2010, entre otras). Tal como se dijo en la resolución mencionada de 1998:

““(…) una vez declarada una determinada área como zona protectora por un acto del Estado, no puede este (sic), simplemente, desafectarlo en todo o en parte, para proteger otros intereses -públicos o privados- en menoscabo del disfrute de un ambiente sano, de conformidad con lo dispuesto en el artículo 50 constitucional. Ahora bien, el hecho de que una norma, del rango que sea, haya declarado como zona protectora una determinada (sic) área, no implica la constitución de una zona pétrea, en el sentido de que, de manera alguna, su cabida pueda ser reducida por una normativa posterior. Sin embargo, se debe tener presente que la declaratoria y delimitación de una zona protectora, en cumplimiento de lo preceptuado en el artículo 50 constitucional, implica una defensa del derecho fundamental al ambiente y, por ello, la reducción de cabida no debe implicar un detrimento de ese derecho, situación que debe establecerse en cada caso concreto.

No resulta necesariamente inconstitucional el hecho de que por medio de una ley posterior se reduzca la cabida de una zona protectora, una reserva forestal, un Parque Nacional o cualesquiera otros sitio (sic) de interés ambiental, siempre y cuando ello esté justificado en el tanto no implique vulneración al derecho al ambiente. Podría ser que, por diversas circunstancias, un determinado sitio haya perdido, al menos en parte, el interés ambiental que, en su momento, provocó, lo que, hechos los estudios del caso, justificaría su modificación o reducción, todo en aplicación del principio de razonabilidad constitucional…” (voto No. 7294-1998).

Concretamente sobre la reserva legal en esta materia, en el voto No.14772-2010 se dijo:

(…) no se puede modificar el destino público de un bien del demanio público sin un acto legislativo, es decir, la reducción de área de una zona protegida se encuentra bajo la garantía que proporciona el principio de reserva de ley. Si bien, de conformidad con el artículo 36 de la Ley Orgánica del Ambiente, el Poder Ejecutivo se encuentra autorizado para constituir las Áreas Silvestre Protegidas mediante el cumplimiento de los requisitos establecidos en esa norma, así, el Parque Nacional Corcovado se constituyó mediante los Decretos Ejecutivos No. 5357-A del 24 de octubre de 1975 y 1148-A del 5 de febrero de 1980, su modificación solo podrá hacerse de conformidad con lo dispuesto en el artículo 38 de la Ley Orgánica del Ambiente, previo estudios técnicos y científicos, y mediante un acto legislativo . (resaltado no corresponde al original).

Asimismo, en sentencia no.1056-2009 se indicó que la reducción únicamente es posible vía legal:

“cuando de la ampliación de los límites de las zonas protectoras del patrimonio forestal del Estado se trata es posible hacerlo vía reglamento, pero cuando de su reducción se trata, únicamente se puede hacer vía legal, claro está, siempre y cuando exista un criterio previo que justifique la medida.” (Sentencia de la Sala Constitucional Nº 1056-2009) Lo cual fue aplicado cuando la Sala declaró inconstitucional la norma reglamentaria (Decreto Ejecutivo Nº 32753-MINAE) mediante la cual el Poder Ejecutivo disminuyó el territorio del Refugio Gandoca-Manzanillo, sustrayendo del área y del régimen de protección, la zona urbana del Refugio.

Además, en cuanto a los estudios, estos deben ser previos, suficientes, necesarios e individualizados –como se indica en el apartado siguiente-. Así se dijo en esa misma resolución de 1998:

“De acuerdo con lo citado, mutatis mutandi, si para la creación de un área silvestre protectora la Asamblea Legislativa, por medio de una ley, estableció el cumplimiento de unos requisitos específicos, a fin de determinar si la afectación en cuestión es justificada, lo lógico es que, para su desafectación parcial o total, también se deban cumplir determinados requisitos -como la realización de estudios técnicos ambientales- para determinar que con la desafectación no se transgrede el contenido del artículo 50 constitucional. En este sentido, podemos hablar de niveles de desafectación. Así, no toda desafectación de una zona protegida es inconstitucional, en el tanto implique menoscabo al derecho al ambiente o amenaza a este (sic). De allí que, para reducir un área silvestre protegida cualquiera, la Asamblea Legislativa debe hacerlo con base en estudios técnicos suficientes y necesarios para determinar que no se causará daño al ambiente o se le pondrá en peligro y, por ende, que no se vulnera el contenido del artículo 50 constitucional.

El principio de razonabilidad, en relación con el derecho fundamental al ambiente, obliga a que las normas que se dicten con respecto a esta materia estén debidamente motivadas en estudios técnicos serios, aún (sic) cuando no existiera otra normativa legal que así lo estableciera expresamente. A juicio de este Tribunal Constitucinal (sic), la exigencia que contiene el artículo 38 de la Ley Orgánica del Ambiente No. 7554, en el sentido de que para reducir un área silvestre protegida por ley formal deben realizarse, de previo, los estudios técnicos que justifiquen la medida, no es sino la objetivación del principio de razonabilidad en materia de protección al ambiente.” (resaltado no corresponde al original).

2. Estudio técnico como un análisis científico e individualizado: La Sala se ha referido a la suficiencia del estudio técnico, cuando mediante varias resoluciones ha establecido que dicho estudio debe ser un análisis científico e individualizado. Así se dijo lo siguiente:

“el requerimiento de estudios técnicos no es una mera formalidad, sino que se trata de un requisito material, es decir materialmente se tiene que demostrar, mediante un análisis científico e individualizado, el grado de impacto de la medida correspondiente en el ambiente, plantear recomendaciones orientadas a menguar el impacto negativo en este, y demostrar cómo tal medida implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.” (Voto No. 13367-2012. Véase además el No. 10158-2013).

De lo cual se desprende que, el estudio técnico que exige el artículo 38 de la Ley Orgánica del Ambiente y que es la objetivación del principio constitucional de razonabilidad en materia de protección al ambiente, requiere de un análisis técnico que implica un análisis individualizado, el cual debe contener como mínimo las siguientes medidas:

El grado de impacto de la medida correspondiente en el ambiente; Las recomendaciones orientadas a menguar el impacto negativo en el ambiente; La demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades.

En síntesis, dicho estudio previo debe demostrar que la desafectación es conforme con la protección constitucional al derecho al ambiente, pues como se dijo en el voto no. 18702-2010 “no se puede permitir que se titulen áreas de esta naturaleza en forma indiscriminada, ya que esto iría contra las mismas políticas conservacionistas del ambiente que ha procurado el Estado en virtud de los cometidos ordenados por la Constitución Política y los Convenios Internacionales que ha suscrito".

3. Medidas de compensación: Un área protegida solo se puede reducir si se hace mediante ley, si hay estudios técnicos y científicos que descarten el daño ambiental y si se da una compensación del área suprimida con otra de igual tamaño. No cabe duda que todas aquellas normas en los cuales hay reducción de las áreas protegidas sin el respaldo de estudios técnicos ni compensación alguna, son inconstitucionales” (voto Nos. 12887-2014, 2773-2014, 2012-13367 y 2009-1056).

VI.Sobre la normativa impugnada.- Tal como se observa, tanto la Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas, Ley No. 8803, como su Reglamento, son impugnados en su totalidad, básicamente por dos razones: por no contar con el estudio técnico que sustente la reducción de un área protegida (en este caso un refugio nacional de vida silvestres), y por no establecer medidas de compensación. Cada uno de estos alegatos se examina por separado. SOBRE EL ESTUDIO TECNICO: El accionante indica que la Ley impugnada y su reglamento, están segregando y reduciendo varias hectáreas del Refugio Nacional de Vida Silvestres de la zona fronteriza, sin que existan estudios ambientales que justificaran esa acción. Indica que los diputados tomaron una simple recomendación que nunca puede ser considerado un estudio serio, profundo y amplio que permitiera hacer lo que se hizo. La Procuraduría General de la República en su informe indica que, ya en la Opinión Jurídica de esta Procuraduría No. O.J.-98-2009, emitida el 14 de octubre del 2009 por consulta de los Diputados, durante la tramitación del proyecto que culminó en la Ley No. 8803, analizó el estudio técnico incorporado al expediente en ese momento, considerándolo insuficiente para justificarla: “…respetuosamente debe señalarse que dicho informe técnico no reúne los requerimientos necesarios para fundamentar el proyecto que se consulta.

Nótese que el mismo hace un estudio sobre las 236 hectáreas que se proponían inicialmente y concluye que el proyecto no es viable desde el punto de vista ambiental y social. Sin embargo, dicho estudio no explica en forma alguna, por qué motivo ese impacto negativo no se produce sobre las 13 hectáreas que se proponen, o en otras palabras, no existe a la fecha, un criterio técnico que se refiera a los motivos por los cuales sí es viable la segregación de las 12.3 hectáreas que se establecen en el proyecto de ley consultado…”. El Ministro de Ambiente y Energía indica que no hay inconstitucionalidad. Agrega que, no se pretendía con la ley impugnada la desafectación del dominio público de la zona en cuestión, sino autorizar la utilización de una porción del área para otro destino de interés público, que es la instalación de un puesto fronterizo y aduanal, en el entendido que se trata de construcciones del Estado y no privadas.

Así el 28 de setiembre del 2007 se emite el informe técnico elaborado por la comisión caso Tablillas, denominado “Solicitud de reducción del área del Refugio Nacional Corredor Fronterizo” que propone un área a desafectar de 13 ha limítrofes con la línea fronteriza, por cuanto los funcionarios del Área de Conservación Arenal Huetar Norte consideraron inviable la segregación del área indicada de 236 ha, concluyendo el informe que: “13 hectáreas, sería una propuesta más viable desde el punto de vista de impacto a los ecosistemas presentes en el sitio y alrededores.” Dicho informe consideró aspectos biofísicos, socioeconómicos, seguridad. Concluye que, el balance del costo beneficio de establecer puestos que realicen control y ordenamiento del ingreso migratorio en dicho sector, contribuye a regular el ingreso por la franja demanial coincidente con el Área Silvestre Protegida. Los Ministros de la Presidencia y de Comercio Exterior indican que, en los folios del 76 al 94 del expediente legislativo consta el informe técnico elaborado en setiembre del 2007 por el MINAE.

El sitio identificado reúne las condiciones aptas para el desarrollo del proyecto de un Puesto Fronterizo por cuanto ya había sido impactada por la acción humana, hecho que se comprueba con la no existencia de ecosistemas de importancia o frágiles, la no presencia de cobertura boscosa primera o secundaria, ni de humedales o cursos de agua, sino únicamente de pastos naturales y terreno limpio para cultivo o listo para siembra. Además el área es técnicamente estratégica para la ubicación del Puesto Fronterizo por la cercanía con la línea limítrofe y la existencia de vías de comunicación para el desplazamiento interno (caminos) y una carretera nacional conectada a la vía del lado nicaragüense de la frontera. Al respecto, esta Sala concluye que, en efecto, la Procuraduría General de la República lleva razón en su informe, no existe un estudio técnico que se refiera a la viabilidad de este proyecto, pues el que se realizó se refería a una zona de mayores dimensiones, concluyendo que no resultaba viable desde el punto de vista ambiental y social.

Por ello, debía justificarse por qué la nueva propuesta no generaría problema en los humedales, en las especies de la zona, en los mantos acuíferos y no produce una problemática social, tal como se detectó en la propuesta inicial. El estudio técnico que refieren los Ministros, resulta evidentemente insuficiente, pues no explica en forma alguna, por qué motivo ese impacto negativo no se produce sobre las 13 hectáreas que se proponen, el grado de impacto de la medida correspondiente en el ambiente, las recomendaciones orientadas a menguar el impacto negativo en el ambiente, ni tampoco la demostración de cómo la medida que se toma, implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades. Por otro lado, si bien puede ser cierto, como dicen los Ministros en su informe, la propiedad no está saliendo del dominio público, es lo cierto que sí está siendo desafectada, ambientalmente hablando.

También puede ser cierto, como dicen los Ministros en su informe, que además del interés ambiental en la zona fronteriza, pueda haber otros intereses relevantes como la seguridad migratoria y otros. Sin embargo, ello justamente es lo que debió haber contenido el informe técnico en su fundamentación. Nótese que, como indican los Ministros, puede ser cierto que se hayan estado tomando ciertas medidas ambientales, ello no enerva el hecho de la carencia de informe técnico con el que debió contar la ley, que dejan esas medidas ambientales sin sustento técnico requerido. Así entonces, se evidencia la inconstitucionalidad alegada, de la ley impugnada –y por conexidad de su reglamento-, por la carencia de informe técnico suficiente que sustentara la reducción del Refugio Nacional de Vida Silvestre de la zona fronteriza. SOBRE LAS MEDIDAS DE COMPENSACIÓN: El accionante indica que no se estableció en la ley medidas de compensación oportunas, ante la segregación ordenada.

La Procuraduría General de la República en su informe indica que, una inconstitucionalidad por violación a este principio, no se resuelve necesariamente con la anulación de la Ley, si se califica como una inconstitucionalidad por omisión, bastaría que la Sala Constitucional dispusiera en sentencia adicionar al Refugio la porción o porciones que compensen el área suprimida, lo cual podría hacerse incluso por vía reglamentaria. Los Ministros de la Presidencia y de Comercio Exterior indican que, la pretensión de demolición de la infraestructura pública causaría la inmediata desprotección del orden, la paz, la salud, el desarrollo sostenible, la vida y la dignidad humana. Además consideran que no existe una obligación del Estado de compensar un área ya deforestada e impactada con otra, toda vez que nunca se dio una reducción del bosque ni una afectación al ambiente que justificare la medida de la compensación.

Al respecto, esta Sala concluye que, en efecto, también las normas impugnadas son omisas en cuanto a las medidas de compensación. Siendo evidente la segregación de alrededor de 13 hectáreas, conforme lo indica el artículo 1° de la ley impugnada, y aunque éstas (sic) no salgan del dominio público, si salieron de una categoría de manejo ambiental, lo cual obligaba a establecer medidas de compensación legales, que no fueron adoptadas, ni garantizadas, según se observa de la lectura de toda la ley. Así entonces, se evidencia la inconstitucionalidad alegada, de la ley impugnada –y por conexidad de su reglamento-, por la carencia de medidas de compensación a la reducción del Refugio Nacional de Vida Silvestre de la zona fronteriza.

VII.En conclusión.- De la jurisprudencia reiterada de esta Sala se tiene que, toda reducción de un área silvestre protegida, en cualquiera de sus categorías de manejo (en cuenta los refugios nacionales de vida silvestre), deben cumplirse tres requisitos esenciales: reserva legal (es decir, sólo (sic) por ley puede hacerse), previa realización de estudios técnicos suficientes que justifiquen la medida y establecer medidas de compensación. En este caso se evidenció que la Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas (Ley No. 8803) y su Reglamento, procedieron a la segregación, y consecuente reducción, del Refugio Nacional de Vida Silvestre de la zona fronteriza. Sin embargo, aunque se hizo por medio de una ley, no se realizó un estudio previo suficiente que: justificara la medida, estableciera el grado de impacto de la medida correspondiente en el ambiente, las recomendaciones orientadas a menguar el impacto negativo en el ambiente, ni tampoco que demostrara cómo la medida que se toma implica un desarrollo que satisface las necesidades del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades, o estableciera en concreto y detalle medidas de compensación.

De todo lo cual se evidencia la inconstitucionalidad por omisión. Procediéndose en este caso a declarar con lugar la acción, con un dimensionamiento de esta sentencia, tal como se indica” (el resaltado fue incorporado).

En otras palabras, la reducción, cualitativa o cuantitativa, de un área silvestre protegida resulta constitucionalmente válida siempre que: i) se efectúe por medio de una ley; ii) con antelación se cuente con estudios científicos apropiados, suficientes e individualizados; y iii) se adopten medidas de compensación.

Cabe advertir que también existe la posibilidad de que la categoría de manejo asignada a determinado espacio geográfico deje de ser compatible con los objetivos de conservación asignados y que, a causa de esto, resulte menester modificar la clase de categoría, con miras a lo cual, tal como sostiene la UICN, debe seguirse un proceso estricto como el utilizado inicialmente para crear el área silvestre protegida objeto de esta acción y la correspondiente categoría de gestión. Al respecto, el artículo 59 de la Ley de Biodiversidad (nro. 7788 del 30 de abril de 1998) estatuye que el SINAC podrá recomendar elevar la categoría de las áreas silvestres protegidas, para lo cual debe atender lo previsto en la Ley Orgánica del Ambiente.

Por ende, resulta viable efectuar cambios en la categoría de manejo otorgada a un área silvestre protegida, para lo cual, cuando la modificación aludida implique elevar la categoría de manejo, tal aumento se puede efectuar por medio de un decreto ejecutivo o de una ley; empero, si lo que se pretende es generar una disminución cualitativa o cuantitativa del área silvestre protegida, es inexorable que el procedimiento se haga por ley y que se dé la compensación correspondiente.

Ahora bien, cabe indicar que, de acuerdo con la Ley de Biodiversidad, la propiedad de las áreas silvestres protegidas puede ser estatal, municipal, privada o mixta. Además, se prevé que, dada la importancia que poseen las áreas silvestres protegidas para la conservación y uso sostenible del país, tanto el MINAE como los entes públicos deben incentivar su creación, así como vigilar y coadyuvar en su gestión. -véase el ordinal 60 de ese cuerpo normativo-.

Es de tal magnitud la trascendencia de las áreas silvestres protegidas, que el legislador dispuso en el numeral 61 de la Ley de Biodiversidad, que el MINAE junto con el Ministerio de Hacienda deben incluir en los presupuestos de la República las transferencias respectivas al fideicomiso o los mecanismos financieros de áreas protegidas a fin de asegurar, por lo menos, el personal y los recursos determinados por el SINAC como necesarios para la operación e integridad de las áreas silvestres protegidas estatales, así como para la protección permanente de las reservas biológicas, los parques nacionales y otras áreas silvestres propiedad del Estado.

Aunado a lo anterior, cabe destacar que el artículo 37 de la Ley Orgánica del Ambiente autoriza al Poder Ejecutivo a: i) incluir dentro de los límites de las áreas silvestres protegidas la totalidad o parte de fincas de particulares que resulten necesarias para cumplir los objetivos previstos en el ordenamiento jurídico y en el plan de manejo; y ii) crear las servidumbres legales a fin de garantizar la protección ecológica y el cumplimiento de la ley. También se prevé que, en el caso de parques nacionales, reservas biológicas o refugios nacionales de vida silvestre estatales, los terrenos serán adquiridos por compra, expropiación o ambos, previa indemnización, toda vez que sus objetivos de conservación y manejo no son compatibles con la propiedad privada.

En el caso de las reservas forestales, las zonas protectoras, los refugios de vida silvestre mixtos y los humedales se autoriza la compra o expropiación de los terrenos, a menos de que la persona propietaria voluntariamente los someta al régimen forestal. En adición, esa norma clarifica que: “Las fincas particulares afectadas según lo dispuesto por este artículo, por encontrarse en parques nacionales, reservas biológicas, refugios de vida silvestre, reservas forestales y zonas protectoras, quedarán comprendidas dentro de las áreas protegidas estatales solo a partir del momento en que se hayan pagado o expropiado legalmente, salvo cuando en forma voluntaria se sometan al Régimen Forestal. Tratándose de reservas forestales, zonas protectoras y refugios de vida silvestre y en caso de que el pago o la expropiación no se haya efectuado y mientras se efectúa, las áreas quedarán sometidas a un plan de ordenamiento ambiental que incluye la evaluación de impacto ambiental y posteriormente, al plan de manejo, recuperación y reposición de los recursos”.

Adviértase que, en cuanto a las áreas marinas protegidas, no existe un régimen de propiedad privada, toda vez que el mar es un bien demanial, de manera que al Estado compete la administración de los bienes y recursos de tal zona y, en consecuencia, es necesario regular su uso y aprovechamiento.

En suma, las áreas silvestres protegidas se pueden clasificar en categorías de manejo o de gestión, cada una de las cuales persigue diversos objetivos de conservación en atención a sus cualidades particulares. Por consiguiente, en la asignación de un tipo de categoría a un espacio geográfico en concreto debe prevalecer su vinculación con la consecución de los objetivos primarios de la categoría correspondiente y en consideración a tales cualidades, para cuyos efectos deviene ineludible contar con estudios científicos respectivos, máxime que si bien las categorías de manejo promueven la conservación, lo cierto es que no todas son compatibles con las características propias de cada espacio geográfico en específico.

II.Sobre el patrimonio cultural. En primer lugar, obsérvese que el numeral 89 de la Carta Magna estatuye: “Entre los fines culturales de la República están: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación, y apoyar la iniciativa privada para el progreso científico y artístico”. De segundo, se subraya que la ‘Convención para la Protección del Patrimonio Mundial, Cultural y Natural’, aprobada mediante ley nro. 5980 del 16 de noviembre de 1976, establece:

“Artículo 1º-A los efectos de la presente Convención se considerará "Patrimonio Cultural":

Los Monumentos: Obras arquitectónicas, de escultura o de pintura monumentales, elementos o estructuras de carácter arqueológico, inscripciones cavernas y grupos de elementos, que tengan un valor universal excepcional desde el punto de vista de la historia del arte o de la ciencia.

Los conjuntos: grupos de construcciones, aisladas o reunidas, cuya arquitectura, unidad o integración en el paisaje les de (sic) un valor universal excepcional desde el punto de vista de la historia, del arte o de la ciencia.

Los lugares: las obras del hombre u obras conjuntas del hombre y la naturaleza así como las zonas, incluidos los lugares arqueológicos que tengan un valor universal excepcional desde el punto de vista histórico, estético, etnológico o antropológico.

Artículo 2º.-A los efectos de la presente convención, se considerarán "Patrimonio Natural":

Los monumentos naturales constituidos por formaciones físicas y biológicas o por grupos de esas formaciones que tengan un valor universal excepcional desde el punto de vista estético o científico.

Las formaciones geológicas o fisiográficas y las zonas estrictamente delimitadas que constituyen el habitat (sic) de especies animal y vegetal amenazadas, que tengan un valor universal excepcional desde el punto de vista estético o científico.

Los lugares naturales o las zonas naturales estrictamente delimitadas, que tengan un valor universal excepcional desde el punto de vista de la ciencia, de la conservación de la belleza natural (…)

Artículo 4º.-Cada uno de los Estados Partes en la presente Convención reconoce que la obligación de identificar, proteger, conservar, rehabilitar y transmitir a las generaciones futuras el patrimonio cultural natural situado en su territorio, le incumbe primordialmente. Procurará actuar con ese objeto por su propio esfuerzo y hasta el máximo de los recursos de que disponga, y llegado el caso, mediante la asistencia y la cooperación internacionales de que se pueda beneficiar, sobre todo en los aspectos financieros, artístico, científico y técnico.

Artículo 5º.-Con objeto de garantizar una protección y una conservación eficaces y revalorizar lo más activamente posible el patrimonio cultural y natural situado en su territorio y en las condiciones adecuadas a cada país, cada uno de los Estados Partes en la presente Convención procurará dentro de lo posible:

• a)Adoptar una política general encaminada a atribuir al patrimonio cultural y natural una función en la vida colectiva y a integrar la protección de ese patrimonio en los programas de planificación general; b) Instituir en su territorio, si no existen, uno o varios servicios de protección, conservación y revalorización del patrimonio cultural y natural, dotados de un personal adecuado que disponga de medios que le permitan llevar a cabo las tareas que le incumben; c) Desarrollar los estudios y la investigación científica y técnica y perfeccionar los métodos de intervención que permita a un Estado hacer frente a los peligros que amenacen a su patrimonio cultural y natural; d) Adoptar las medidas jurídicas, científicas, técnicas, administrativas y financieras adecuadas, para identificar, proteger, conservar, revalorizar y rehabilitar ese patrimonio; y e) Facilitar la creación o el desenvolvimiento de centros nacionales o regionales de formación en materia de protección, conservación y revalorización del patrimonio cultural y estimular la investigación científica en este campo.

Artículo 6º.- 1.-Respetando plenamente la soberanía de los Estados en cuyos territorios se encuentre el patrimonio cultural y natural a que se refieren los artículos 1º y 2º y sin perjuicio de los derechos reales previstos por la legislación nacional sobre ese patrimonio, los Estados Partes en la presente Convención reconocen que constituye un patrimonio universal en cuya protección la comunidad internacional entera tiene el deber de cooperar.

1. 2Los Estados Partes se obligan, en consecuencia y de conformidad con lo dispuesto en la presente Convención, a prestar su concurso para identificar, proteger, conservar y revalorizar el patrimonio cultural y natural de que trata el artículo 11, párrafos 2 y 4, si lo pide el Estado en cuyo territorio esté situado.
2. 3Cada uno de los Estados Partes en la presente Convención se obliga a no tomar deliberadamente ninguna medida que pueda causar daño, directa o indirectamente, al patrimonio cultural y natural de que tratan los artículos 1º y 2º situado en el territorio de otros Estados Partes en esta Convención.

Artículo 7º.-Para los fines de la presente Convención, se entenderá por protección internacional del patrimonio mundial cultural y natural el establecimiento de un sistema de cooperación y asistencia internacional destinado a secundar a los Estados Partes en la Convención en los esfuerzos que desplieguen para conservar e identificar este patrimonio” (el resaltado fue incorporado).

Ello implica que el Estado costarricense se comprometió con la protección al patrimonio cultural y natural; con tal finalidad, debe, entre otras cosas, llevar a cabo las acciones necesarias para “identificar, proteger, conservar, rehabilitar y transmitir a las generaciones futuras el patrimonio cultural y natural”. En otras palabras, el Estado debe ejecutar acciones tendentes a garantizar la protección y conservación del patrimonio cultural y natural, así como su rehabilitación, todo con el propósito de concretar su preservación.

Por su parte, por medio de la ley nro. 6360 del 5 de setiembre de 1979 se aprobó la ‘Convención Defensa Patrimonio Arqueológico Artístico Naciones Americanas’, que regula:

“ARTÍCULO 1 La presente Convención tiene como objeto la identificación, registro, protección y vigilancia de los bienes que integran el patrimonio cultural de las naciones americanas, para: a) impedir la exportación o importación ilícita de bienes culturales, y b) promover la cooperación entre los Estados Americanos par el mutuo conocimiento y apreciación de sus bienes culturales.

ARTÍCULO 2 Los bienes culturales a que se refiere el artículo precedente son aquellos que se incluyen en las siguientes categorías:

• a)monumentos, objetos, fragmentos de edificios desmembrados y material arqueológico, pertenecientes a las culturas americanas anteriores a los contactos con la cultura europea, así como los restos humanos, de la fauna y flora, relacionados con las mismas; b) monumentos, edificios, objetos artísticos, utilitarios, etnológicos, íntegros o desmembrados, de la época colonial, así como los correspondientes al siglo XIX; c) bibliotecas y archivos; incunables, libros y otras publicaciones, iconografías, mapas y documentos editados hasta el año de 1850; d) todos aquellos bienes de origen posterior a 1850 que los Estados Partes tengan registrados como bienes culturales, siempre que hayan notificado tal registro a las demás Partes del Tratado; e) todos aquellos bienes culturales que cualesquiera de los Estados Partes declaren o manifiesten expresamente incluir dentro de los alcances de esta Convención (…)

ARTÍCULO 7 El régimen de propiedad de los bienes culturales y su posesión y enajenación dentro del territorio de cada Estado serán regulados por su legislación interna. Con el objeto de impedir el comercio ilícito de tales bienes se promoverán las siguientes medidas:

• a)registro de colecciones y del traspaso de los bienes culturales sujetos a protección; b) registro de la transacciones (sic) que se realicen en los establecimientos dedicados a la compro y venta de dichos bienes; c) prohibición de importar bienes culturales procedentes de otros Estados sin el certificado y la autorización correspondiente.

ARTÍCULO 8 Cada Estado es responsable de la identificación, registro, protección, conservación y vigilancia de su patrimonio cultural, para cumplir tal función se compromete a promover:

• a)la preparación de las disposiciones legislativas y reglamentarias que se necesiten para proteger eficazmente dicho patrimonio contra la destrucción por abandono o por trabajos de conservación inadecuados; b) la creación de organismos técnicos encargados específicamente de al (sic) protección y vigilancia de los bienes culturales c) la formación y mantenimiento de un inventario y un registro de los bienes culturales que permitan identificarlos y localizarlos; d) la creación y desarrollo de museos, bibliotecas, archivos y otros centros dedicados a la protección y conservación de los bienes culturales; e) la delimitación y protección de los lugares arqueológicos y de interés histórico y artístico; f) la exploración, excavación, investigación y conservación de lugares y objetos arqueológicos por instituciones científicas que las realicen en colaboración con el organismo nacional encargado del patrimonio arqueológico” (el resaltado fue incorporado).

Lo anterior refleja que con la ‘Convención Defensa Patrimonio Arqueológico Artístico Naciones Americanas’ el Estado costarricense se comprometió a adoptar medidas a fin de garantizar la identificación, registro, protección y vigilancia de los bienes que integran el patrimonio cultural.

En el caso de la ley nro. 4711 del 6 de enero de 1971 denominada ‘Conservación Bienes Culturales por Ejecución Obras Públicas o Privadas’, se aprobó la Recomendación sobre la conservación de los bienes culturales que la ejecución de obras públicas o privadas pueda poner en peligro suscrita en París el 22 de noviembre de 1968 y se estableció que:

“1. Para los efectos de la presente recomendación, la expresión "bienes culturales" se aplicará a:

a. Inmuebles, como los sitios arqueológicos, históricos o científicos, los edificios u otras construcciones de valor histórico, científico, artístico o artquitectónico (sic), religiosos o seculares, incluso los conjuntos de edificios tradicionales, los barrios históricos de zonas urbanas y rurales urbanizadas y los vestigios de culturas pretéritas que tengan valor etnológico. Se aplicará tanto a los inmuebles del mismo carácter que constituyan ruinas sobre el nivel del suelo como a los vestigios arqueológicos o históricos que se encuentren bajo la superficie de la tierra. El término "bienes culturales" también incluye el marco circundante de dichos bienes.

b. Los bienes muebles de importancia cultural, incluso los que se encuentran dentro de bienes inmuebles o se hayan recobrado de ellos, y los que están enterrados y que puedan hallarse en lugares de interés, arqueológico o histórico o en otras partes. (…)

2. Principios Generales 3. Las medidas de conservación de los bienes culturales deberán extenderse no solamente a determinados monumentos o lugares, sino a todo el territorio del Estado.

4. Deberían llevarse inventarios para la protección de los bienes culturales importantes, registrados o no como tales. Cuando no existan esos inventarios, deberá darse prioridad, al establecerlas, al examen detallado y completo de los bienes culturales en las zonas en que tales bienes están en peligro como consecuencia de la ejecución de obras públicas o privadas.

5. Debería tenerse debidamente en cuenta la importancia relativa de los bienes culturales de que se trate al determinar las medidas necesarias:

a. Para conservar el conjunto de un lugar arqueológico, de un monumento o de otros tipos de bienes culturales inmuebles contra las consecuencias de obras públicas o privadas:

b. Para salvar los bienes culturales cuando la zona en que están situados haya de ser transformada para la ejecución de obras públicas o privadas y cuando tales bienes o parte de ellas hayan de ser conservados y trasladados.

6. Las disposiciones que han de tomarse variarán según el carácter, las dimensiones y la situación de los bienes culturales, y según, la índole de los peligros que les amenace.

7. Las disposiciones encaminadas a conservar o salvar los bienes culturales deberían ser preventivas y correctivas.

8. Las disposiciones preventivas y correctivas deberían tener por finalidad proteger o salvar los bienes culturales puestos en peligro por obras públicas o privadas que puedan deteriorarlos o destruirlos, por ejemplo:

a. Obras de expansión y renovación urbanísticas, en las cuales aunque se respeten monumentos registrados se modifiquen estructuras menos importantes, destruyendo con ello las vinculaciones y el marco histórico que rodea a los monumentos en los barrios históricos; b. Obras similares en zonas en las que conjuntos tradicionales de valor cultural puedan correr peligro de destrucción por no existir en ellas un monumento registrado:

c. Modificaciones o reparaciones inoportunas de edificios históricos; d. La construcción o modificación de carreteras que constituyan un grave peligro para lugares, monumentos o conjuntos de monumentos de importancia histórica; e. La construcción de embalses con fines de riego, producción de energía eléctrica y prevención de las inundaciones; f. La construcción de oleoductos y de líneas de transmisión de energía eléctrica; g. Los trabajos agrícolas como el arado profundo de la tierra, los de avenamiento y riegos, la roturación y nivelación del terreno y de repoblación forestal; h. Los trabajos que exige el desarrollo de la industria y el progreso técnico de las sociedades industrializadas, como la construcción de aeródromos, la explotación de minas y canteras y el dragado y mejoramiento de canales y puertos, etc.

9. Los Estados Miembros deberían dar prioridad a las medidas necesarias para la conservación in situ de los bienes culturales que corran peligro como consecuencia de obras públicas o privadas, para mantener así la continuidad y las vinculaciones históricas de tales bienes. Cuando las circunstancias económicas o sociales impongan el traslado, el abandono o la destrucción de los bienes culturales, los trabajos encaminados a salvarlos deberían siempre comprender un estudio detenido de los bienes culturales de que se trate y el registro completo de los datos de interés.

10. Los resultados de los estudios de interés científico o histórico que se hayan realizado en relación con trabajos destinados a salvar bienes culturales, en especial cuando todos o gran parte de los bienes culturales inmuebles hayan sido abandonados o destruidos, deberían publicarse o ponerse de algún otro modo a disposición de los investigadores futuros. (…)

13. Para conservar o salvar bienes culturales que la ejecución de obras públicas o privadas pueda poner en peligro debería recurrirse a medios que correspondan a las siguientes medidas precisas, de conformidad con el sistema jurídico y de organización de casa Estado:

• a)Legislación, b) Financiamiento, c) Medidas administrativas, d) Métodos de conservación y salvación de los bienes culturales, e) Sanciones, f) Reparaciones, g) Recompensas, h) Asesoramiento, i) Programas educativos.

(…)

21. Cuando se realicen estudios preliminares sobre proyectos de construcción en una localidad de interés cultural reconocido, o en la cual es probable que se encuentren objetos de valor arqueológico o histórico, convendría que antes de tomarse una decisión se elaboraran diversas variantes de tales proyectos, a escala regional o urbana. La elección entre esas variantes debería basarse en un análisis comparativo de todos los elementos, a fin de escoger la solución más ventajosa, tanto desde el punto de vista económico como en lo que atañe a la conservación o salvación de los bienes culturales.

Métodos de conservación y salvación de los bienes culturales:

22. Con la suficiente anticipación a la realización de obras públicas o privadas que puedan poner en peligro bienes culturales, deberían realizarse detenidos estudios para determinar:

a. Las medidas que hayan de tomarse para conservar los bienes culturales importantes in situ; b. La magnitud de los trabajos de salvación necesarios, como la selección de los yacimentos (sic) arqueológicos en que hayan de practicarse excavaciones, los edificios que hayan de trasladarse a los bienes culturales muebles que deban salvarce (sic), etc.

23. Las medidas encaminadas a conservar o salvar los bienes culturales deberían tomarse con la suficiente anticipación a las obras públicas o privadas. En las zonas importantes desde el punto de vista arqueológico o cultural en las cuales haya monumentos importantes, tales como ciudades, pueblos, lugares o barrios de valor histórico, que deberían estar protegidos por la legislación de todos los países, toda nueva construcción debería estar sujeta a excavaciones preliminares obligatorias de carácter arqueológico. En caso necesario, debería apazarse (sic) la construcción para dar tiempo a que se tomen las medidas destinadas a conservar o salvar los bienes culturales de que se trate (…)” (el destacado fue agregado).

A su vez, mediante la ley nro. 8560 del 16 de noviembre de 2006 denominada ‘Convención para la Salvaguardia del Patrimonio Cultural Inmaterial’ se amplió el ámbito de protección del patrimonio cultural al tomarse en consideración el patrimonio cultural inmaterial. Al respecto, se consignó:

“Artículo 2º-Definiciones. A los efectos de la presente Convención, 1. Se entiende por "patrimonio cultural inmaterial" los usos, representaciones, expresiones, conocimientos y técnicas -junto con los instrumentos, objetos, artefactos y espacios culturales que les son inherentes- que las comunidades, los grupos y en algunos casos los individuos reconozcan como parte integrante de su patrimonio cultural. Este patrimonio cultural inmaterial, que se transmite de generación en generación, es recreado constantemente por las comunidades y grupos en función de su entorno, su interacción con la naturaleza y su historia, infundiéndoles un sentimiento de identidad y continuidad y contribuyendo así a promover el respeto de la diversidad cultural y la creatividad humana. A los efectos de la presente Convención, se tendrá en cuenta únicamente el patrimonio cultural inmaterial que sea compatible con los instrumentos internacionales de derechos humanos existentes y con los imperativos de respeto mutuo entre comunidades, grupos e individuos y de desarrollo sostenible.

2. El "patrimonio cultural inmaterial", según se define en el párrafo 1 supra, se manifiesta en particular en los ámbitos siguientes:

• a)tradiciones y expresiones orales, incluido el idioma como vehículo del patrimonio cultural inmaterial; b) artes del espectáculo; c) usos sociales, rituales y actos festivos; d) conocimientos y usos relacionados con la naturaleza y el universo; e) técnicas artesanales tradicionales”.

A nivel jurisprudencial, este Tribunal indicó en la sentencia nro. 4350-97 de las 14:54 horas del 24 de junio de 1997:

“SEGUNDO: DEL PATRIMONIO ARQUEOLOGICO (sic) O PATRIMONIO CULTURAL. Los bienes culturales, son producto y testimonio de las diferentes tradiciones y realizaciones espirituales de lo pasado y constituye el elemento fundamental de la personalidad de los pueblos, por lo que es indispensable conservarlos y esta es una tarea fundamental del Estado. Lo anterior hace que el patrimonio histórico y artístico sea diferente al de los bienes patrimoniales de carácter económico, porque no se trata de bienes de producción, sino, del patrimonio arqueológico cuyo régimen jurídico obedece a otro orden de ideas y propósitos y a una diferente categoría de valores que, por lo tanto, no pueden examinarse con un criterio de política económica, porque no le es aplicable ninguna doctrina de ese género. La noción de "patrimonio", cierta­mente (sic), comprende cualesquiera bienes que tengan un valor en dinero, como lo señala el Código Civil, patrimonio es el total conjunto de los bienes y derechos de una persona o, también, que todos los bienes que constituyen el patrimonio de una persona, responden al pago de sus deudas.

Es obvio, que los bienes arqueológicos o culturales también tienen valor apreciable en dinero, ya sea por el material de que están hechos, por su fina artesanía o belleza o por el testimonio histórico que evidencian, ya sean de barro, piedra o metal. Algunos de esos objetos pueden ser de escaso valor físico o de poca signifi­cación (sic) como obra artística, pero aun así son valiosos por su origen y como elementos de estudio para investigar la cultura de los pueblos de otras épocas, de sus creencias y costumbres o de la naturaleza del medio en que vivieron, según sean las huellas o representaciones que allí logren encon­trarse (sic). Pero, esos bienes, antes y ahora, constituyen un patrimo­nio (sic) común que las generaciones pasadas legaron a las presentes y a éstas corresponde hacerlo para las futuras como muestra de conocimiento de los hechos humanos que identifican o caracterizan un pasado nuestro.

Por todo eso, valen los objetos arqueológicos provenientes de las razas aborígenes que poblaron el continente en la época pre-colombina (sic), anterior o contemporánea al estableci­miento (sic) de la cultura hispánica y por ese valor es que muchas personas buscan y adquieren esas piezas. Por eso mismo, el interés individual que cada uno pueda tener en la posesión o propiedad de esos objetos, no está sobre el interés público, tanto por su valor histórico, como porque, dentro de la cultura de los pueblos, está el estudio de lo que hicieron los grupos humanos que habitaron el mismo territorio, estudio que se facilita haciendo posible que el mayor número de personas tenga acceso a esas fuentes de conocimiento y nada más consecuente con ese interés público, que los bienes arqueológicos permanezcan en territorio nacional, en poder de los museos y bajo la perte­nencia del Estado o de sus instituciones.

Debe entonces subra­yarse (sic), que lo más importante no es el valor material de los referidos objetos, sino, su valor histórico, científico y cultural. Ese interés, no es más que un querer mayoritario orientado a la obtención de los valores pretendidos; esto es, de la mayoría de los intereses individuales coinciden­tes (sic). Es interés, porque se orienta al logro de un valor, provecho o utilidad resultante de aquello sobre lo que recae tal coincidencia mayoritaria. Es público, porque se asigna a toda la comunidad, como resultado de esa mayoría coincidente, porque es o pertene­ce al pueblo, a la comunidad en general. De modo que, es interés público, porque no es exclusivo o propio de unas pocas personas, sino en cuanto participan o coinciden en el mismo un número tal de personas, componentes de una comunidad determinada, que puede llegar a identificársela como de todo el grupo, inclusive, respecto de aquellos que, individualmente, puedan o no compartirlo.

Es decir, los valores de carácter histórico y cultural, como portadores de un mensaje, contribuyen a identifi­car (sic) un momento histórico determinado, testimonio real y tangible de la evolución y transformación experimentada por la sociedad y su medio natural a través del tiempo, que constituyen antes, hoy y para el futuro, patrimonio común como expresión de la mayoría de los intereses individuales coinciden­tes (sic), es decir, de un interés público.

TERCERO: DEL REGIMEN (sic) JURIDICO (sic) CONSTITUCIONAL DEL PATRI­MONIO (sic) NACIONAL ARQUEO­LOGUICO (sic). Dentro de los fines esenciales del Estado, el Constituyente de 1949 estableció, a propósito de trasmitir aquel legado material, que constituye el vínculo que enlaza el presente con el futuro, esos presupuestos en el artículo 89 de la Constitución Política. Esto hace necesario hacer mención de sus antecedentes, en el que en su aprobación se habló del patrimonio históri­co (sic) o artístico; en otras palabras, del patrimonio cultural en general. En efecto, en la Asamblea Constituyente de 1949, el texto del artículo 89 de la constitución Política que se aprobó se originó en una moción del licenciado Fernando Baudrit Solera y de otros Diputados, en los siguientes términos:

"Entre los fines culturales de la República están el de conservar, desarrollar y nacionalizar la riqueza histórica y artística, y el de apoyar la iniciativa privada para el progreso científico y artístico del país.".

Del texto propuesto, sin embargo, por haber sido objetada, se suprimió la expresión "nacionalizar", y en su discusión quedó claro el respeto a la propiedad de las colecciones particulares, como intereses individuales que debían ser amparados, porque no se pretendía despojar a nadie de sus legíti­mas (sic) pertenencias, pero considerando que si era necesario o conveniente expropiar, el Estado podía hacerlo de acuerdo con la Constitución y las leyes. En el acta respectiva, entre otras intervenciones, aparece la siguien­te (sic):

"El Lic. Baudrit Solera explicó que la idea de consignar la posibilidad de nacionalizar la riqueza artística o histórica, fue precisamente para su conservación en el país, evitando que pudiera ser exportada. Ahora mismo es necesario dictar una serie de leyes que impidan a los particu­lares (sic) deshacerse de su riqueza artística e histórica para venderla a países extranjeros. Por eso se habló de nacionalizar la riqueza, en el entendido de que si era necesario expropiar, hacerlo de acuerdo con la Constitución y las leyes. No se pensó en despojar a nadie. Sin embargo, como no tiene interés en que el término "nacionalizar" se mantenga, acepta la sugerencia del compañero Chacón (Licenciado Alvaro (sic) Chacón Jinesta) siempre y cuando estén de acuerdo en la supresión los otros firmantes de la moción, tanto más cuanto que si es obligación del Estado "conservar", por allí tendrá la base para expropiar, en forma legal, la riqueza histórica y artística, cuando lo estime convenien­te.".

Por esta causa, el texto propuesto se modificó y el artículo 89 de la Constitución Política, se aprobó así:

"Entre los fines culturales de la República están: proteger las belle­zas naturales, conservar y desarrollar el patrimonio histórica (sic) y artístico de la Nación y apoyar la iniciativa privada para el progreso científico y artístico.".

Tal disposición constitucional, deriva del constituyente originario, quien estimó que los bienes arqueológicos o culturales -patrimonio histórico- pertenecieran al Estado como producto de su patrimonio arqueológico. Y, respecto de este artículo, la jurisprudencia constitucional desarrollada señala:

"Esta Sala en reiterada jurisprudencia ha manifestado la impor­tan­cia (sic) que para el desarrollo del ser humano, tiene el vivir en un ambiente sano y ecológicamente equilibrado, así como la pro­tección (sic) por parte del Estado, del paisaje, de la naturaleza y del patrimonio histórico del país. Aspectos contemplados en los artículos hoy 50 y 89 de la Constitución Política. ... El caso que nos ocupa se refie­re (sic) específicamente a lo dispuesto por el artículo 89 que a su tenor dispone:

"Entre los fines culturales de la República están: proteger las bellezas naturales, conservar y desarrollar el patrimo­nio (sic) histó­rico (sic) y artístico de la Nación y apoyar la inicia­tiva privada para el progreso científico y artísti­co (sic) ".

Arqueología e Historia son dos ciencias vinculadas íntimamente, teniendo como uno de sus objetivos aclarar y reconstruir los acontecimientos del pasado. La reconstrucción histórica se basa, fundamentalmente en la interpretación de documentos escritos, mientras que la Arqueología basa sus estudios en los datos que obtiene a través de los objetos materiales dejados por la acción del hombre en las sociedades ya desaparecidas, por medio de su relación entre ellos, de la forma del hallazgo y de su conexión con el ambiente. Todo objeto conservado, todo vestigio de vida y actividad del hombre de las sociedades del pasado, representa un testimonio que hace posible el conoci­miento (sic) total o parcial, según sea el caso, de esos testimonios, y, por ende, de formas de vida ya inexistentes y desconocidas en el presente, pero cuyo conocimiento es de singular importancia, pues forman parte de la identidad cultural de la sociedad en que se vive; desde luego, en la medida en que sean un testimonio importante para la recons­trucción (sic) y conocimiento de los hechos del pasado.

El Patrimonio Arqueológico Nacional consiste básicamente en los inmuebles y muebles, producto de las culturas indígenas anteriores o contem­poráneas al establecimiento de la cultura prehispánica en el territorio nacional, así como los restos humanos, flora y fauna, relacionados con estas culturas. De lo anterior resulta el interés en la protección y conservación de esos hallazgos.". (Vid sentencias N.°2706, 10:42 horas del 26 de marzo, 1995 y N.° 0729 de 09:15 horas del 9 de febrero, 1996).

CUARTO: DEL REGIMEN (sic) JURIDICO (sic) LEGAL DEL PATRIMONIO NACIONAL ARQUEOLÓGICO. En el ámbito nacional se han adoptado fundamentalmente dos regímenes para hacer posible, como lo hace el interna­cional (sic), la protección, defensa y recuperación de los bienes culturales, como producto y testimonio de las diferentes tradiciones y realizaciones espiri­tuales del pasado, que constitu­yen (sic), así, el elemento sustancial de la personalidad de los pueblos que hace indispensable conservarlos. En ese interés -que en el ámbito internacional está reconocido en textos como el Convenio 107 de la Conferencia Internacio­nal (sic) de Trabajo, relativo a la protección e integración de las poblaciones indígenas y otras poblaciones tribales y semitribales en los países independientes, aprobado por Ley N.° 2330 de 8 de abril, 1959, que en sus artículos 4 inciso a) y 18 inciso 2, obliga a tomar en consideración los valores y patrimonio culturales de dichas poblaciones; la Recomendación sobre la Conservación de los Bienes Cultura­les (sic) que la Ejecución de Obras Públicas y Privadas pueda poner en peligro, suscrita en París el 22 de noviembre, 1968, aprobada por Ley N.° 4711 de 6 de enero, 1971; la Convención para la Protección del Patrimonio Cultural y Natural, suscrita en París el 23 de noviembre, 1972, aprobada por Ley N.° 5980 de 16 de noviembre, 1976 y la Conven­ción (sic) sobre la Defensa del Patrimo­nio (sic) Arqueológico, Histórico y Artístico de las Naciones Americanas, denomina­da (sic) también Convención de San Salvador, aprobada el 16 de junio, 1976, en el sexto periodo ordinario de sesiones de la Asamblea General de la Organización de Estados Americanos (O.E.A.), en Santiago de Chile y que fue ratificada por Ley N.° 6360 de 5 de setiembre, 1979, que en su artículo 2 incluye en el patrimonio cultural o bienes culturales, los monumentos edificios, fragmentos de edificios, objetos y material arqueológico pertene­cientes (sic) a las culturas americanas anteriores a los contactos con la cultura europea; los de la época colonial y posterior a ella, bienes que conforme el artículo 3 deben ser objeto de máxima protección a nivel internacional y se consideran ilícitas su exportación e importación, salvo que el Estado a que pertenecen autorice su exportación para los bienes de promover el conocimien­to de las culturas nacionales-, se inspiraron muchas de nuestras leyes.

Por una parte, la N.° 7 de 6 de octubre, 1938, que aunque no se refiere apropia­damen­te (sic) a "patrimonio arqueológico" o patrimonio histórico (y artístico), como lo hace la actual Constitución, estableció el siguiente régimen jurídi­co (sic):

1.° Atribuyó al Estado la propiedad de todos los objetos arqueológicos existentes en el suelo de Costa Rica, anteriores a la conquista españo­la (sic), es decir, correspondientes a la época pre-colombina (sic), no comprendi­dos aun en el patrimonio particular.

2.° No reconoció en favor del Estado la propiedad de los objetos arqueo­lógicos (sic) del período colonial; y 3. Negó eficacia al traspaso de cualesquiera bienes arqueológicos, correspondientes a la era pre-colombina(sic) o al período colonial, si no se inscribían e inventariaban esos bienes en el Registro y no se obtenía la autorización del Museo.

De estos presupuestos, se derivaron dos principios fundamentales:

1.° Son propiedad del Estado, todos los objetos arqueológicos existen­tes (sic) en el suelo de Costa Rica anteriores a la conquista española, así como los monumentos del mismo género que pudieran encontrarse; y 2.° Son propiedad privada, los objetos arqueológicos comprendidos en el patrimonio particular al ser promulgada esa Ley, con lo cual se establece el régimen de dominio para los futuros hallazgos y respeta los derechos adquiridos con anterioridad. Por otra parte, se aprobó la N.° 6703 de 28 de diciembre, 1981, objeto de esta acción, la cual modificó sustancialmente la situación existente hasta la anterior Ley, a la que derogó (en todo lo que se le oponga), que reconoce, como aquella, la propiedad particular sobre los objetos arqueológicos comprendidos en el patrimonio particular con anterioridad al ser promulgada aquella Ley. Esta, estableció el siguiente régimen jurídico:

1.° Los objetos arqueológicos de la época pre-colombina (sic), hallados y traspasados antes de la Ley de 1938, son propiedad particulares (sic).

2.° Los bienes de la misma época, hallados antes pero traspasados después de la Ley de 1938, quedaron sometidos a la autorización del Museo.

3.° Los objetos de la misma época pre-colombina (sic), hallados después de la Ley de 1938, son de propiedad del Estado; y 4.° Los objetos de la época colonial respecto de los cuales la Ley de 1938 no estableció ningún derecho de propiedad en favor del Estado, quedaron sometidos a control y restricciones.

Lo anterior, en otras palabras, significa que se atribuyó al Estado la propiedad de los objetos de la época pre-colombina (sic) que se hallaran después de esa Ley -la de 1938; de los hallados antes pero traspasados después, el adquirente no tiene ningún título legítimo de adquisición, pues el traspaso quedó condicionado a la autorización del Museo Nacional y sobre estos el Estado tiene derecho preferente para adquirirlos; los hallados después, pertenecen al Estado, independientemente de que, al estar bajo posesión de particulares, se registraran o no en el Museo y los de la época colonial, cualquier traslado efectuado antes, consti­tuye título legítimo de adquisi­ción (sic), pues se trata de bienes que eran y continuaron siendo de propiedad particular bajo la vigencia de esa Ley y en cuanto exige autorización para traspasar objetos arqueológicos, se refiere solo a los traspasos que se hagan de allí en adelante; pero, en cuanto a los bienes que se traspasaron después, los adquirente de esos bienes no pueden alegar título legítimo de adquisición, menos aun si el hallazgo se produjo con posterioridad. Todos estos aspectos ratifican la condición de los bienes patrimoniales que se encuentran en poder de los particulares como lo reconoció aquella primera Ley (…)

OCTAVO: CONCLUSIONES. En el sub-judice, el fundamento esencial con que se solicita la declaratoria de inconstitucionalidad de los artículos 3, 8, 17, 20, 26 y 29 de la "Ley de Patrimonio Nacional Arqueológico", N.° 6703 de 28 de diciembre, 1981, es por el hecho de que al imponer limitaciones (o privacio­nes o restricciones "sic") a la propiedad que redundan, también, en detrimen­to (sic) de la libertad de comercio, su aprobación debió ser por votación califica­da afirmativa de treinta y ocho diputados, conforme lo manda el párrafo segundo del artículo 45 de la Constitución Política, lo cual no ocurrió, pues de acuerdo con el acta de asistencia, la votación -que lo fue nominal- contó con la aprobación de treinta y un (31) votos afirmativos y ocho (8) negati­vos. Del análisis de las consideraciones señaladas, respecto de los fundamen­tos (sic) que subyacen en torno al "patrimonio arqueológico" como propiedad del Estado, es menester concluir que tales bienes, si bien como cualquier cosa en algún momento fueron susceptibles de apropiación, lo cierto es que en la actualidad, a partir de 1949, por mandato constitucional, son diferentes a los bienes patrimoniales de carácter económico, porque constitu­yen bienes patrimoniales que el Estado debe proteger, conservar y desarrollar en términos del artículo 89 de la Constitución Política, que reconoce, como también se dice, la iniciativa privada para el progreso científico y artísti­co.

De modo que, como queda dicho también, las limitaciones a que se refiere el párrafo segundo del artículo 45 constitucional, son las que derivan del "... principio de solidaridad social, del que está imbuida nues­tra (sic) constitución, (que) permite el gravamen soportado por todos en favor de todos, o inclusive de unos pocos en favor de muchos, pero con el requisito de que el uso natural del bien inmueble no se afectado al límite de su valor como medio de producción, o de su valor en el mercado. Es decir pueden limitarse los atributos de la propiedad en tanto el propietario reserve para sí la posibili­dad (sic) de explotar normalmente el bien, excluido claro está la parte o función afectada por la limitación impuesta por el Estado. Fuera de esos parámetros, si el bienestar social exige sacrifi­cios (sic) de alguno o de algunos únicamente, debe ser indemniza­do (sic) ". (­...) "La limitación a la propiedad resistirá el análisis consti­tucional dependiendo de la afectación de los atributos esenciales de la propiedad, que son aquellos que permiten el uso natural de la cosa, dentro de la realidad socioeconómica ac­tual (sic) ".(...) " El daño puede ser general, inutilizando gran parte de la finca o que afecte la mejor parte del bien.

También podría tratarse de una limitación que haga imposible el uso de la cosa, porque el estado imponga requisitos de autorización o de aproba­ción (sic) tan complejos que impliquen de hecho la imposibilidad de usufructuar del bien. En estos casos de especial severidad la limitación produce tres efectos identificables: a-produce un daño especial porque afecta a un número determinado de fincas. b-Es anormal, en tanto la afectación es tan grave en relación con el goce pleno del derecho y opera desigualmente frente a otros propietarios fuera de la zona afectada y c- el daño es evaluable económicamente. En consecuencia si la limitación es de tal grado que detrae el bien de su valor económico y lo detrae del comercio de bienes inmue­bles, el estado debe indemnizar el perjuicio causado." (Vid sentencia N.° 7418, 09:57 horas, 16 de diciembre, 1994).

Por consiguiente, los bienes culturales, más que bienes de interés social que tiendan a satisfacer exigencias y requerimientos propios de necesidades públicas, es decir, para la obtención del bienestar general, son bienes que conforman el "patrimonio nacional arqueológico", cuya propiedad del Estado, como representante de la comunidad entera, resulta inobjetable. De esto resulta que no es posible privar a nadie de lo que es del Estado, por lo que, en consecuencia, la Ley de Patrimonio Nacional Arqueológico, N.° 6703 de 28 de diciembre, 1981, al disponer como propiedad del Estado los bienes patrimo­niales (sic) arqueológicos (artícuLo (sic) 3), prohibir su comercio y exportación (artículo 8) y que sus poseedores están obligados a prestarlos al Registro Público Nacional Arqueológico para su inscripción (artículo 17), no crea limitaciones -privaciones o restricciones- a la propiedad privada que requieran de una votación califica como se reclama.

Eso sí, lo anterior no significa un detrimento de los derechos patrimoniales adquiridos o situacio­nes (sic) jurídicas consolidadas, como se reconoció, tanto por la ley anterior, como por el actual régimen legal a que se ha hecho referencia y que ratifi­cara el citado pronunciamiento de la Corte Plena en funciones de Tribunal Constitucional. Por eso mismo, la autorización a que se refiere el párrafo segundo del artículo 45 constitucional, no lo es para imponer toda clase de limitaciones a la propiedad, sino, únicamente a las de "interés social", pero está claro que dentro de ellas no podemos incluir los bienes culturales o bienes patrimoniales arqueológicos, que tienen otro origen y cumplen otra misión. Esto se dice, finalmente, sin perjuicio de que entendamos, aunque no sea esa la hipótesis que se discute en esta acción, que aun los bienes culturales (pertenecientes al patrimonio histórico) legítimamente en poder de las personas privadas, puedan ser expropiadas si se cumplen debidamente las disposiciones legales que rigen la materia.

Como consecuencia de lo que se lleva dicho, no existe incompatibilidad de los artículos 3, 8 y 17 de la Ley de Patrimonio Nacional Arqueológico, en los términos que los interpretó la Corte Plena en su sesión extraordinaria N.° 19 de las nueve horas del veinticinco de marzo de mil novecientos ochenta y tres, cuya acta fue aprobada en la sesión del cuatro de abril siguiente, con la Constitución Política y las demás normas y principios constitucionales que se invocan. Tampoco resultan inconstitucionales los artículos 20, 26 y 29, pues, como se indicó, son desarrollo y parten de la validez de aquellas otras normas impugnadas. De tal modo, tampoco resultan ilegítimas en cuanto argüidas de inconstitucionales todas esas normas, porque su aprobación se hizo sin la votación calificada que manda el citado artículo 45 constitucional. En consecuencia, procede declarar sin lugar la acción de inconstituciona­lidad en esos extremos” (la negrita fue añadida).

Ulteriormente, en la sentencia nro. 2002005245 de las 15:20 horas del 29 de mayo de 2002 se precisó:

“VI.- Los bienes arqueológicos en el sistema constitucional. El artículo 89 de la Constitución Política establece que entre los fines culturales de la República están:

"… proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación y apoyar la iniciativa privada para el progreso científico y artístico." La protección del patrimonio histórico se enmarca entonces dentro del rango más amplio del deber que tiene el Estado de preservar la cultura común que convierte a su pueblo en una Nación. El Diccionario de la Real Academia Española de la Lengua, en lo conducente, define a la cultura como:

"… el conjunto de modos de vida y costumbres, conocimientos y grado de desarrollo artístico, científico o industrial, en una época o grupo social" (Vigésima Segunda Edición. Tomo I. 2001) El patrimonio arqueológico es una especie del género más amplio constituido por el patrimonio cultural, precisión que tiene importantes implicaciones prácticas en el tanto el papel del Estado en la promoción y garantía de los bienes arqueológicos debe ser siempre parte de una política integral de protección y fomento de la producción cultural autóctona. Para que los derechos derivados de la norma constitucional en cuestión sean efectivamente verificados, se requiere de parte de las autoridades públicas no solo crear el marco normativo necesario, sino además actuar de manera concreta, mediante mecanismos idóneos de tutela que partan de la premisa ineludible de que una Nación que desprecia su herencia histórica, destruyéndola o evitando por todos los medios lícitos su pérdida o deterioro, se encuentra destinada a fracasar como sociedad, pues es precisamente la visión del pasado la que permite entender el presente y programar el futuro.

El patrimonio arqueológico –en el caso costarricense- ha sido definido comúnmente como el conjunto de bienes inmuebles y muebles, producto de las culturas indígenas anteriores o contemporáneas al establecimiento de la cultura hispánica en el territorio nacional, así como los restos humanos, flora y fauna, relacionados con estas culturas, constituyendo uno de los principales medios para hacer efectivo el conocimiento exacto de los orígenes históricos de nuestras sociedades, en el tanto permite comprender el germen de nuestras actuales formas de pensamiento y expresión cultural, además de aportar datos de gran utilidad para otros campos del conocimiento, tales como la ecología, la farmacoterapia, la zoología, etc. Sobre la importancia intrínseca del patrimonio arqueológico dentro del sistema social, esta Sala se pronunció en los términos siguientes:

"Arqueología e Historia son dos ciencias vinculadas íntimamente, teniendo como uno de sus objetivos aclarar y reconstruir los acontecimientos del pasado. La reconstrucción histórica se basa, fundamentalmente en la interpretación de documentos escritos, mientras que la Arqueología basa sus estudios en los datos que obtiene a través de los objetos materiales dejados por la acción del hombre en las sociedades ya desaparecidas, por medio de su relación entre ellos, de la forma del hallazgo y de su conexión con el ambiente. Todo objeto conservado, todo vestigio de vida y actividad del hombre de las sociedades del pasado, representa un testimonio que hace posible el conocimiento total o parcial, según sea el caso, de esos testimonios, y, por ende, de formas de vida ya inexistentes y desconocidas en el presente, pero cuyo conocimiento es de singular importancia, pues forman parte de la identidad cultural de la sociedad en que se vive; desde luego, en la medida en que sean un testimonio importante para la reconstrucción y conocimiento de los hechos del pasado".

(Sentencia número 729-96 de las nueve horas quince minutos del nueve de febrero de mil novecientos noventa y seis) No es que el conocimiento del pasado revista un particular interés por razones de mera curiosidad historiográfica, sino que su estudio permite aproximarse a una comprensión global de los fenómenos sociales y culturales actuales. La tutela de los bienes arqueológicos debe entonces ser comprendida como una forma de amparo de la cultura en general, como bien que trasciende la titularidad de cualquier individuo, constituyéndose en un valor de importancia nacional, cuyo reconocimiento y efectiva defensa forma parte del conjunto de intereses garantizados en los artículos 50 y 74 de la Constitución Política.

VII.El patrimonio arqueológico en el Derecho Internacional. Costa Rica, como sujeto de Derecho Internacional, ha suscrito y ratificado diversos instrumentos destinados a proteger el patrimonio arqueológico. Así, podemos citar los siguientes: A) La Convención sobre la protección de los bienes culturales en caso de conflicto armado (Convención de La Haya), de catorce de mayo de mil novecientos cincuenta y cuatro, y su Reglamento, los cuales reconocen la importancia del patrimonio arqueológico, obligando a los Estados envueltos en un conflicto bélico a respetar el de aquellos que ocupen, poniendo sus bienes culturales a buen resguardo, lejos de la zona de conflicto. B) La Recomendación que define los principios internacionales que deberán aplicarse a las excavaciones arqueológicas, de cinco de diciembre de mil novecientos cincuenta y seis, obliga a los Estados Partes a someter la excavaciones arqueológicas (sic) que en sus territorios sean llevadas a cabo a una estricta vigilancia y previa autorización de autoridad competente (principio 5).

• C)La Carta Internacional sobre la conservación y la restauración de los monumentos y de los sitios, que reconoce la inseparabilidad del monumento y la historia que atestigua, además de la prohibición del traslado del monumento a no ser para su conservación (artículo 7); la obligación de proteger esos sitios (14), y la necesidad de preservar la identidad del monumento, evitando alterar esencialmente su apariencia o naturaleza (15). D) La Convención sobre defensa del patrimonio arqueológico, histórico y artístico de las Naciones Americanas (Convención de San Salvador), aprobada mediante Ley número 6360 de cinco de setiembre de mil novecientos setenta y nueve, que incluye dentro de los bienes culturales al material arqueológico perteneciente a culturas anteriores a las culturas americanas anteriores a los contactos con la cultura europea (artículo 2); reconoce el dominio del Estado sobre tales objetos (6); dispone que cada Estado se compromete a promover la exploración, excavación, investigación y conservación de lugares y objetos por parte de organismos especializados en asocio con las instituciones públicas encargadas de tutelar el patrimonio arqueológico (8).
• E)La Recomendación sobre la conservación de los bienes culturales que la ejecución de obras públicas o privadas pone en peligro, suscrita el veintidós de noviembre de mil novecientos sesenta y ocho, aprobada mediante Ley número 4711, de seis de enero de mil novecientos setenta y uno, dentro de sus considerandos establece que la civilización contemporánea y su evolución futura reposa sobre la tradición de los pueblos y las fuerzas creadoras de la humanidad, así como sobre su desarrollo social y económico y que los bienes culturales son producto y testimonio de las diferentes tradiciones y realizaciones espirituales de lo pasado, y constituye así el elemento fundamental de las personalidad de los pueblos, por lo que determina la necesidad de llevar la protección del patrimonio cultural a todo el territorio del Estado, y no solo a los sitios formalmente declarados como tales (artículo 3); las medidas deben ser tanto preventivas como correctivas (7) contra cualquier tipo de obra, pública o privada, capaz de deteriorarlos (8); dispone además que deberán ser realizados, con suficiente anticipación, estudios detenidos para determinar las medidas que deban ser adoptadas in situ, así como la magnitud de los trabajos de salvación necesarios (22).
• F)La Convención para la protección del patrimonio mundial, cultural y natural, suscrita el veintiuno de noviembre de mil novecientos setenta y dos, aprobada por Ley número 5980 de dieciséis de noviembre de mil novecientos setenta y seis, ordena a los Estados Partes identificar, proteger, conservar, rehabilitar y transmitir a las futuras generaciones, el patrimonio cultural (artículo 4). G) La Convención sobre las medidas que deben adoptarse para prohibir e impedir la importación, la exportación y la transferencia de propiedad ilícitas de bienes culturales, firmada el diecinueve de setiembre de mil novecientos setenta, aprobada por Ley número 7526 de diez de julio de mil novecientos noventa y cinco, que incluye dentro del concepto de patrimonio cultural a aquellos de valor etnológico, arqueológico y natural (artículo 5).

Huelga aclarar que todos los instrumentos citados en el párrafo anterior constituyen fuente de Derecho en Costa Rica, susceptibles de ser aplicados directamente por esta Sala Constitucional para la resolución del presente asunto, según dicta el artículo 48 constitucional. En el caso de los aprobados por la Asamblea Legislativa, por disposición expresa del artículo 7 de la Constitución Política. En cuanto a los que no gozan de dicha condición, porque constituyen al menos fuentes de interpretación de los instrumentos aprobados. Tampoco reconoce esta Sala la existencia de simples recomendaciones en materia de derechos humanos, pues si los Estados deciden autolimitarse, reconociendo la existencia de determinados derechos humanos, aun cuando aparezcan denominadas con el nombre de “recomendaciones”. Lo anterior lleva a entender que la Recomendación que define los principios internacionales que deberán aplicarse a las excavaciones arqueológicas, la Carta Internacional sobre la conservación y la restauración de los monumentos y de los sitios y la Recomendación sobre la conservación de los bienes culturales que la ejecución de obras públicas o privadas pone en peligro, son –en los términos antes dichos- actos provistos de plena normatividad en el ordenamiento constitucional costarricense, sin que se les pueda considerar simples enumeraciones de objetivos y metas a alcanzar.

VIII.La regulación legal del patrimonio arqueológico. Además de las normas constitucionales que protegen el patrimonio arqueológico y de los compromisos asumidos en ese mismo sentido por Costa Rica ante la comunidad internacional, han sido emitidas diversas normas internas referentes a la materia objeto de esta acción. A) La Ley número 7 de seis de octubre de mil novecientos treinta y ocho da a los bienes arqueológicos la condición de dominiales (artículo 1), además de ordenar la inmediata comunicación del hallazgo de objetos a las autoridades públicas, las cuales deberán tomar las medidas necesarias para su protección (artículo 17). B) La Ley 6793, de veintiocho de diciembre de mil novecientos ochenta y uno, Ley de Patrimonio Nacional Arqueológico, que además de reiterar las disposiciones de la Ley número 7, crean la Comisión Arqueológica Nacional, órgano al cual le dan potestad de autorizar excavaciones por parte de científicos previamente registrados y supervisarlas (artículos 12 y 15); confiere al Museo Nacional la competencia para definir la forma en que se rescatarán los bienes en caso de hallazgo por parte de tercero (artículo 13).

• C)El Código de Minería, Ley número 6797, de cuatro de octubre de mil novecientos ochenta y dos, cuyo artículo 102 inciso h) obliga la realización de estudios de impacto ambiental referentes a los efectos sobre la riqueza arqueológica y cultural del país para la realización de actividades mineras. D) La Ley número 7555, de cuatro de octubre de mil novecientos setenta y cinco, Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, que define el sitio arqueológico como aquel que contiene objetos importantes desde un punto de vista histórico, estético, etnológico, antropológico o ambiental (artículo 6°); el numeral 7°, por su parte, establece el procedimiento para la incorporación de un bien al patrimonio histórico-arquitectónico mediante Decreto, que implica el impedimento de demoler el inmueble.

IX.La importancia de los bienes arqueológicos. Los bienes arqueológicos, entendidos como aquellos objetos que permiten al investigador acceder al conocimiento histórico, poseen una importancia intrínseca, por constituir un instrumento idóneo y difícilmente reemplazable para adquirir ese conocimiento, en el que el medio que los circunda adquiere también especial relevancia. Para la efectiva tutela de los bienes arqueológicos, el Estado debe participar activamente en todos los procedimientos tendientes a su detección, rescate (cuando proceda), estudio, registro y conservación. Solo de esa forma será dado cabal cumplimiento a los deberes provenientes del mandato constitucional, así como de los asumidos mediante la suscripción de los instrumentos internacionales citados y de la promulgación de las leyes mencionadas. No obstante esa marcada importancia, la tutela de los bienes arqueológicos se ha visto afectada por la confluencia de diversos factores, tales como el coleccionismo, el comercio de objetos y su destrucción indiscriminada debido en parte a la realización de edificaciones en zonas donde existen sitios arqueológicos.

Esta confluencia de intereses, en razón de la obligación constitucional del Estado de velar por la protección del patrimonio arqueológico, hace necesario el establecimiento de mecanismos legislativos y administrativos tendientes garantizar la protección del legado arqueológico, ante la necesidad del desarrollo económico. Esta prevalencia ya fue reconocida por la Corte Plena cuando, ejerciendo funciones de contralor de constitucionalidad, sostuvo:

“Es obvio que los bienes arqueológicos también tienen valor apreciable en dinero, ya sea por el material de que están hechos (el oro, por ejemplo), o por su fina artesanía y su belleza, aunque sean de barro o de piedra. Algunos de esos objetos pueden ser de escaso valor físico o de poca significación artística; pero aun así son valiosos por su origen y como elementos de estudio para investigar la cultura de los pueblos de otras épocas, de sus creencias y costumbres, o de la naturaleza del medio en que vivieron, según sean las huellas o representaciones que allí logren encontrarse. Por todo eso valen los objetos arqueológicos provenientes de las razas aborígenes que poblaron el continente en la época precolombina o anterior o contemporánea al establecimiento de la cultura hispánica; y por ese valor es que muchos adquieren esas piezas, algunos para goce espiritual o interés científico y otros acaso para lucrar con ellos.

Pero sobre el interés individual que cada uno pueda tener en la posesión o propiedad de esos objetos, predomina el interés público, tanto por el valor histórico de tales bienes, como porque, dentro de la cultura de los pueblos, está el estudio de lo que hicieron los grupos humanos que habitaron el mismo territorio, estudio que se facilita haciendo posible que, aquí mismo, el mayor número de personas tenga acceso a esas fuentes de conocimiento; y nada más consecuente con ese interés público, que los bienes arqueológicos permanezcan en territorio nacional, en poder de museos y bajo la pertenencia del Estado o de sus instituciones, como parte del patrimonio histórico que la Carta Política denomina “de la Nación”, en el artículo 89. Debe entonces subrayarse que lo más importante no es el valor material de los referidos objetos, sino el valor histórico y cultural, y que de ningún modo podría ser aplicable a esos objetos la doctrina económica sobre los bienes productivos y la libertad de empresa”.

(Resolución de las trece horas del doce de mayo de mil novecientos ochenta y nueve) Queda entonces claro que la relevancia de los bienes arqueológicos no se agota en aspectos venales. Muy por el contrario, su mayor importancia está en los datos que pueden ofrecer para conocer adecuadamente los orígenes de la identidad nacional, además de la basta información que ofrecen para otros no menos importantes campos del conocimiento científico. Es así como incluso bienes de pocas cualidades estéticas, de uso cotidiano, o aún en mal estado de conservación pueden ser de gran importancia para el conocimiento arqueológico. Por otra parte, la protección del patrimonio arqueológico es también un asunto de relevancia mundial. El Informe Preliminar Sobre los Medios Jurídicos para la Protección y Conservación del Patrimonio Histórico y Artístico de los Países Americanos de la Organización de Estados Americanos estableció en este sentido:

"No existe un interés exclusivamente local en los estados de proteger y conservar los testimonios objetivados del arte y la cultura de épocas pretéritas que se encuentran en sus respectivos territorios; ese interés es compartido por toda la comunidad internacional, que justificadamente considera que aquellos constituyen un patrimonio cultural que pertenece a la humanidad entera y, por ende, merecen ser objeto de su preocupación y su protección.

De esta manera, la protección y conservación del patrimonio cultural trasciende actualmente del ámbito de las jurisdicciones nacionales para complementarse, jurídicamente por medio de instrumentos internacionales, y materialmente a través de la cooperación solidaria de los países que forman la comunidad internacional para hacer efectivo tal deber de protección y conservación" La preservación del patrimonio arqueológico de un pueblo no es visto, entonces, como un asunto de mero interés local, mas como un aporte significativo a la preservación de la cultura mundial.

X.El patrimonio arqueológico como bien de dominio público. Es evidente que los bienes arqueológicos, de conformidad con los términos de las normas citadas, forman parte del patrimonio público, de los llamados bienes demaniales, cuya titularidad es la Nación, en el tanto se encuentran afectos a cumplir una finalidad de interés general. El uso y tenencia de los bienes dominicales forma parte siempre de un régimen especial, caracterizado por el hecho de que tales objetos deben ser empleados tan solo en forma tal que no contradigan su finalidad, en algunas (sic) casos solamente por parte de la Administración; en otros también por parte de particulares, pero ciñéndose estrictamente a las limitaciones que su carácter público implica. Esta Sala ha definido los bienes de dominio público en los siguientes términos:

"…El dominio público se encuentra integrado por bienes que manifiestan, por voluntad expresa del legislador, un destino especial de servir a la comunidad, al interés público.- Son los llamados bienes dominicales, bienes demaniales, bienes o cosas públicas o bienes públicos, que no pertenecen individualmente a los particulares y que están destinados a un uso público y sometidos a un régimen especial, fuera del comercio de los hombres.- Es decir, afectados por su propia naturaleza y vocación.- En consecuencia, esos bienes pertenecen al Estado en el sentido más amplio del concepto, están afectados al servicio que prestan y que invariablemente es esencial en virtud de norma expresa.- Notas características de estos bienes, es que son inalienables, imprescriptibles, inembargables, no pueden hipotecarse ni ser susceptibles de gravamen en los términos del Derecho Civil y la acción administrativa sustituye a los interdictos para recuperar el dominio.- Como están fuera del comercio, estos bienes no pueden ser objeto de posesión, aunque se puede adquirir un derecho al aprovechamiento, aunque no un derecho a la propiedad.- El permiso de uso es un acto jurídico unilateral que lo dicta la Administración, en el uso de sus funciones y lo que se pone en manos del particular, es el dominio útil del bien, reservándose siempre el Estado, el dominio directo sobre la cosa…" (Sentencia número 2306-91 de las catorce horas con cuarenta y cinco minutos del seis de noviembre de mil novecientos noventa y uno) Con anterioridad, la Corte Plena, ejerciendo control de constitucionalidad, determinó:

“Pues bien, si antes de la Ley de 1938 no se legisló debidamente sobre el patrimonio arqueológico, muy puesto en razón está que el legislador se ocupara de ello en esa Ley y en la de 1981, para evitar lo que había ocurrido bajo el régimen anterior. XIX.- Esas dos leyes reconocen la propiedad individual de los bienes arqueológicos que estuvieran en mano privada; pero a la vez dispusieron que, en lo sucesivo, los bienes que fueran objeto de hallazgo pertenecerían al Estado. No se lesionó ningún derecho adquirido, pues se mantuvo la propiedad particular hasta entonces existente… No hace falta norma especial en la Constitución, para que puedan establecerse prohibiciones concretas en las leyes ordinarias, si tuvieren apoyo en el artículo 28, como son las que excluyen el hallazgo como título legítimo para adquirir el dominio privado de los bienes arqueológicos… XX.- En el artículo 89 se refleja el interés público que la Constitución protege en el número 28 párrafo segundo, pues allí se dice que “Entre los fines culturales de la República están:...conservar y desarrollar el patrimonio histórico y artístico de la Nación”.

Con ello se reconoció la existencia de un patrimonio diferente al de los bienes de carácter económico, y a la vez quedó establecido el deber de procurar su conservación. El orden público cultural e histórico permite interpretar esa regla con amplitud, y basarse en ella para reafirmar la propiedad estatal de los bienes arqueológicos que se descubrieran en lo futuro, como lo dispuso la Ley de 1938. Esos bienes, antes y ahora, constituyen “un patrimonio común que las generaciones pasadas legaron a las posteriores”… XXI.- De todo lo anterior se desprende: a) Que es legítimo el régimen de propiedad instituido en el artículo 1º de la Ley de 1938, pues tiene respaldo en los artículos 28 y 89 y no se contrapone el artículo 45 de la propia Carta Política; y b) Que, en consecuencia, tampoco pueden ser contrarios a la Constitución los artículos 3º, 5º, 7º, 9º y 17 de la Ley Nº 6703 de 1981, en cuanto son aplicables a los objetos arqueológicos hallados con posterioridad a la Ley Nº 7 de 1938, pues esos bienes pertenecen al Estado, de acuerdo con el artículo 1º de esa Ley de 1938, que no es inconstitucional.” (Resolución de las trece horas de doce de mayo de mil novecientos ochenta y nueve)

XI.El principio preventivo en materia arqueológica. La importancia de los bienes arqueológicos y su carácter de bienes demaniales crea a cargo del Estado una serie de obligaciones dirigidas a su efectiva tutela, elemento común de los derechos de la llamada tercera generación. En temas de tanta relevancia y delicada protección, no puede concebirse que las autoridades administrativas intervengan una vez que el daño ha sido causado, por cuanto los daños pueden resultar irreversibles y de muy grandes proporciones. En el caso de los bienes arqueológicos existe una única posibilidad, su protección efectiva o su pérdida irremediable. A efecto de dimensionar el momento y las acciones que el Estado debe emprender para la protección del patrimonio arqueológico, deben realizarse algunas consideraciones de importancia que quedaron dibujadas en las consideraciones anteriores. Los bienes arqueológicos, individualmente considerados, si bien es cierto pueden constituir elementos claves para la comprensión del pasado histórico–cultural del país, su relevancia puede resultar disminuida si no son considerados integralmente respecto del contexto en el cual fueron encontrados.

La investigación arqueológica no puede limitarse entonces al estudio de objetos que han sido destruidos total o parcialmente, o bien a bienes sacados de su contexto sin la previa realización de exhaustivos análisis de campo que visen su comprensión dentro del ambiente donde fueron hallados, ya que en tales casos una labor que por imperativo constitucional (artículos 50, 74 y 89) debería ser concebida como de rigurosidad científica, se podría convertir en poco más que una simple labor de coleccionismo y contemplación artística, en contravención del orden fundamental” (el énfasis fue incorporado).

Del precedente transcrito se desprende la importancia del principio preventivo en materia arqueológica. Este implica la protección de los objetos o lugares considerados de relevancia cultural, lo que demanda la realización de estudios científicos pertinentes, a fin de garantizar su protección y preservación. Mutatis mutandis, tomando en cuenta que el patrimonio cultural comprende varios tipos de patrimonio (como el arqueológico ‑ver la sentencia nro. 2002005425 de las 16:20 horas del 29 de mayo de 2002-) la tesitura anterior deviene plenamente aplicable en el caso del patrimonio histórico referido a la isla San Lucas.

A su vez, en la sentencia nro. 2003003656 de las 14:43 horas del 7 de mayo de 2003, esta Cámara Constitucional se refirió al patrimonio cultural en estos términos:

“C.- DE LA TUTELA CONSTITUCIONAL AL PATRIMONIO CULTURAL. ARTÍCULOS 50 Y 89 DE LA CONSTITUCIÓN POLÍTICA.

XVI. DELIMITACIÓN DEL ÁMBITO DE APLICACIÓN Y SUSTENTO JURÍDICO-CONSTITUCIONAL

La importancia de la protección del patrimonio cultural, a nivel nacional, regional e internacional no tiene discusión, precisamente por la trascendencia que este acervo representa para el necesario mantenimiento y fortalecimiento de la identidad de los pueblos (población y/o nación), sea, en los ámbitos histórico, social, geográfico y cultural. De todos es sabido que la comprensión del pasado -vinculación con las raíces- implica la del tiempo presente y establece las posibilidades del futuro desarrollo material y psico-social de los individuos y grupos humanos. Se trata del reconocimiento de un valor, entendido como la incorporación de un potencial económico, o valor que se realiza en función a un fin trascendente (valor espiritual, cultural o artístico). Es por lo anterior que el concepto de patrimonio histórico-arquitectónico ha evolucionado y con él los criterios para su protección, de manera que ya no se justifica en un ideal "romántico", sino como una condición de identidad de los pueblos, como parte integrante de su historia y su cultura, atendiendo a razones de desarrollo social-económico y urbanístico-ambiental o urbanístico-ecológico, y que tiene un sustento más humano.

Es así como se hace necesaria la protección por los Estados, que permita una acción eficaz y eficiente, sobre la base de una construcción científica coherente con la realidad, tanto en el ámbito de las teorías territoriales y arquitectónicas, como en el legal, en tanto interactúa con otras disciplinas y saberes, como la Historia, la Antropología, la Arquitectura, y la Teoría de la Restauración, y el Derecho, entre otras; y que tome en consideración las circunstancias propias del país, como lo son el grado de subdesarrollo y la dependencia económica. Es así como la protección de este patrimonio debe integrarse de manera activa a los recursos sociales y económicos del país, para que no constituya una carga para el Estado, ni tampoco para la población (propietarios, poseedores o titulares de algún derecho real sobre los bienes incorporados a este régimen especial de tutela), de manera tal que se configure como otro recurso más que genere bienestar social.

XVII.La protección del patrimonio cultural se enmarca dentro del Derecho Urbanístico, que últimamente ha venido a ser comprendido dentro del marco más amplio del Derecho Ambiental, el cual encuentra su sustento jurídico-constitucional en los artículos 50 y 89 de la Constitución Política, en tanto disponen textualmente:

"El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza.

Toda persona tiene derecho a un ambiente sano y ecológicamente equilibrado. Por ello está legitimado para denunciar los actos que infrinjan ese derecho y para reclamar la reparación del daño causado.

El Estado garantizará, defenderá y preservará ese derecho. La ley determinará las responsabilidades y las sanciones correspondientes" (artículo 50); y "Entre los fines culturales de la República están: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación y apoyar la iniciativa privada para el progreso científico y artístico" (artículo 89).

Esta última norma da directrices para que las autoridades públicas impulsen la protección del medio ambiente, entendido esto de una manera integral, sea, no entendido en su sentido tradicional que se ha limitado al ámbito del recurso natural, lo que comúnmente se conoce como "lo verde", en tanto se ha entendido que comprende los recursos naturales (bosques, agua, aire, minerales, flora y fauna, etc.), sino también en lo relativo al entorno en que se vive, que comprende, no sólo a las bellezas escénicas de la naturaleza, como el paisaje, sino también todo lo relativo a las ciudades y conglomerados urbanos y rurales, es decir, al concepto de lo urbano. Bien puede afirmarse que se trata de dos aspectos complementarios de una realidad, como las dos caras de una misma moneda: el ambiente natural y el ambiente urbano. Es así como se pretende un ambiente más humano, es decir, un ambiente que no sólo sea sano y ecológicamente equilibrado, sino también como un referente simbólico y dador de identidad nacional, regional o local.

Así, el derecho fundamental a tener un ambiente sano y ecológicamente equilibrado -desarrollado ampliamente por la jurisprudencia constitucional- comprenderá, tanto sus partes naturales, como sus partes artificiales, entendiéndose por tales, el hábitat humano, lo construido por el hombre, sea, lo urbano, de manera que se mantengan libres de toda contaminación, tanto por los efectos y repercusiones que puede tener en la salud de las personas y demás seres vivientes, como por el valor intrínseco del ambiente. Por elemento contaminante se debe entender "[...] todo elemento, compuesto o sustancia, su asociación o composición, derivado químico o biológico, así como cualquier tipo de energía, radiación, vibración o ruido que, incorporados en cierta cantidad al ambiente por un lapso más o menos prolongado, puedan afectar negativamente o ser dañinos a la vida, la salud o al bienestar del hombre o de la flora y fauna, o causar un deterioro en la calidad del aire, agua, suelo, "bellezas naturales" o recursos en general, que hacen en síntesis, la calidad de vida" (sentencia número 3705-93, de las quince horas del treinta de julio de mil novecientos noventa y tres).

Es así, como la protección del patrimonio cultural, y en específico, el histórico-arquitectónico, se constituye en un precepto necesario cuando se pretende una mejor calidad de vida -elemento determinante en la concepción del medio ambiente-, y su tutela efectiva; de donde, su regulación se circunscribe dentro del Derecho Ambiental.

XVIII.Es a partir de los artículos 50 y 89 constitucionales que se genera una obligación para el Estado de proteger el entorno en el que se desarrolla la vida de la población de la nación, y que abarca estos dos ámbitos: lo natural y lo urbano; de manera que la tutela del patrimonio cultural, y más específico, del patrimonio histórico-arquitectónico, se ubica dentro de las regulaciones de orden urbanístico. Es en atención a las anteriores consideraciones que bien puede afirmarse que la conservación del patrimonio cultural contribuye a mantener el equilibrio ambiental necesario en el desarrollo urbano, al requerir, para su efectiva tutela, el respeto de la escala, la estructura y el dimensionamiento urbanos, regula la capacidad de cargas físicas, cuestiona las funciones y servicios urbanos, lo cual da como resultado, una mejor calidad ambiental; además de que contribuye a mantener la imagen propia o concurrencia perceptiva de la ciudad, lo que le da identidad o cohesión formal.

XIX. DESARROLLO NORMATIVO DE LA PROTECCIÓN AMBIENTAL

Ambas facetas del ambiente, sea el medio ambiente natural y lo urbano, son objeto de protección y tutela por parte del Estado, como derivado de las obligaciones impuestas en las normas constitucionales transcritas, y que se desarrolla en normativa de diversas categorías, como en los tratados internacionales, entre los que se pueden citar los siguientes: el Convenio para la Protección de la Flora, de la Fauna, y de las Bellezas Escénicas Naturales de los Países de América, ratificado por Ley número 3763; el Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central, ratificado por Ley número 7433; la Convención de Ramsar, relativa a los humedales de importancia internacional especialmente como hábitat de aves acuáticas, ratificada por Ley número 7724; la Convención sobre el Comercio internacional de especies amenazadas de fauna y flora silvestre, ratificada por Ley número 5605, el Convenio para la protección y el desarrollo del medio marino de la Región del Gran Caribe, ratificado por la Ley número 7227; el Protocolo relativo a la cooperación para combatir los derrames de hidrocarburos en la Región del Gran Caribe; el Convenio para la prevención de la contaminación del mar por vertimiento de desechos y otras materias, ratificado por Ley número 5566; el Convenio sobre pesca y conservación de los recursos vivos de la alta mar, ratificado por Ley número 5032; la Convención sobre el mar territorial y la zona contigua, ratificada por Ley número 5031; y el Convenio constitutivo de la Comisión Centroamericana de Ambiente y Desarrollo, ratificado por Ley número 7226; en el campo ambiental natural; la Convención sobre la protección de los bienes culturales en caso de conflicto armado, su Reglamento y Protocolo, aprobados en la Conferencia Internacional de Estados convocada por la UNESCO en 1954, y suscritos por Costa Rica el 3 de marzo de 1996; la Recomendación que define los principios internacionales que deberán aplicarse a las excavaciones arqueológicas, aprobada en la Conferencia General de la UNESCO en 1956; la Recomendación relativa a la protección de la belleza y del carácter de los lugares y paisajes, aprobada en la Conferencia General de la UNESCO en 1962; la Carta Internacional sobre la conservación y la restauración de monumentos y de conjuntos históricos-artísticos, aprobada por el Consejo Internacional de Monumentos y Sitios (ICOMOS) en 1965; las Normas de Quito, aprobadas en la Reunión de Presidentes Latinoamericanos en 1967; la Recomendación sobre la protección en el ámbito nacional del patrimonio cultural y natural, aprobada en la Conferencia General de la UNESCO en 1968; la Recomendación sobre la conservación de los bienes culturales que la ejecución de obras públicas y privadas pueda poner en peligro, aprobada en la Conferencia General de la UNESCO en 1968, ratificada por Ley número 4711; la Convención sobre las medidas que deben adoptarse para prohibir e impedir la importación, la exportación y la transferencia de propiedad ilícitas de bienes culturales, aprobada en la Conferencia General de la UNESCO en 1970, ratificada por Ley número 7526; la Convención sobre la protección del patrimonio cultural y natural, aprobada en la Conferencia General de la UNESCO en 1972, ratificada por Ley número 5980; la Convención sobre la Defensa del Patrimonio Arqueológico, Histórico y Artístico de las Naciones Americanas, aprobada por la Asamblea General de la Organización de los Estados Americanos (OEA) en 1976, ratificada por Ley número 6360; la Recomendación relativa a la salvaguardia de los conjuntos históricos y su función en la vida contemporánea, aprobada en la Conferencia General de la UNESCO en 1976; la Recomendación sobre el intercambio internacional de bienes culturales, aprobada en la Conferencia General de la UNESCO en 1976; la Recomendación sobre la protección de los bienes culturales muebles, aprobada en la Conferencia General de la UNESCO en 1978; la Carta Internacional de ICOMOS para la protección de las ciudades históricas, aprobada en 1987; y la Recomendación sobre la salvaguardia de la cultura tradicional y popular, aprobada en la Conferencia General de la UNESCO en 1989.

En nuestro país se han promulgado diversas leyes en la materia ambiental, tales como la Ley Orgánica del Ministerio de Ambiente y Energía, número 7152; la Ley Orgánica del Ambiente, número 7554; la Ley de Biodiversidad; la Ley Forestal, número 7575, y su Reglamento; la Ley de Conservación de la Fauna Silvestre, número 2790, y su Reglamento, Decreto Ejecutivo número 26.133-MINAE; la Ley de Aguas, número 276; la Ley de la Zona Marítimo Terrestre, número 6043; y la Ley General de Salud, número 5395; y en la materia de protección del patrimonio cultural las siguientes: la Ley de Protección del Patrimonio Arqueológico, número 6730 y la Ley del Patrimonio Histórico-Arquitectónico, número 7555. Dentro del conjunto de normas reglamentarias, en la materia ambiental se pueden citar el Reglamento Especial que regula la extradición de los materiales en los cauces de dominio público, Decreto-Ejecutivo número 21.910-MIRENEM; el Decreto Ejecutivo número 30.480-MINAE, que establece los principios que rigen la política nacional en materia de gestión hídrica; el Reglamento sobre Procedimientos de la SETENA, Decreto Ejecutivo número 25.705-MINAE; Los principios, criterios e indicadores para el manejo forestal y la certificación en Costa Rica, Decreto Ejecutivo número 27.388-MINAE; De las funciones regenciales, Decreto Ejecutivo número 26.870-MINAE, además de los decretos ejecutivos que declaran o crean zonas protegidas; así como el Reglamento de la Comisión Arqueológica Nacional, Decreto Ejecutivo número 19.016-C, en el caso del patrimonio cultural, y todos aquellos decretos por los que se incorporan inmuebles y sus edificaciones al patrimonio histórico-arquitectónico.

XX. CONCEPTUALIZACIÓN DE LA TUTELA AL PATRIMONIO CULTURAL COMO UN DERECHO FUNDAMENTAL

El proceso de desarrollo cultural de la sociedad y el intercambio de bienes y expresiones culturales, motivan el surgimiento de un contexto de derechos y obligaciones ligados a situaciones sociales, políticas y económicas del mundo, tales como las crecientes necesidades socioculturales de la población, la importancia cada vez mayor de la cultura como elemento esencial de la nacionalidad (identidad nacional), los problemas de la supervivencia de las culturas tradicionales, artesanales y folklóricas, y la importancia de los valores y expresiones del patrimonio cultural como factor fundamental de integración nacional, lo cual evidencia la necesidad de una adecuada regulación que involucre los intereses en juego. Bajo este contexto surge la tutela o protección del patrimonio cultural a cargo del Estado, toda vez que se enmarca dentro de la configuración del Estado Social de Derecho, con todas sus implicaciones, en virtud de lo cual se le conceptualiza como un verdadero derecho fundamental, que deriva del derecho a la cultura; y por lo tanto es exigible frente a las autoridades públicas responsables de esta tutela, lo cual se traduce en la exigibilidad de actuaciones efectivas y concretas de la Administración que tutelen el patrimonio cultural.

Este derecho tiene su sustento en la dignidad esencial de la persona humana, y en la necesidad de integrar este elemento con el desarrollo de la comunidad; de manera que comprende, no sólo el derecho de la persona a su autorealización personal, sino también el derecho de la colectividad -población- a conformar su identidad cultural, toda vez que se constituye en un elemento esencial que coadyuva en esta importante tarea, por lo que también tiene implicaciones en la soberanía cultural de los Estados, concretamente en lo que respecta al resguardo de la personalidad cultural del país y a la exigencia de la cooperación internacional que al respecto pueda y deba darse. Es un derecho de la tercera generación, que se sustenta en el principio de solidaridad), por lo que se clasifica en la categoría de los derechos sociales, el cual tiene evidente trascendencia en tanto repercute en la vida en sociedad, por cuanto en virtud de éste se configura un derecho de todo individuo -como exigencia de su dignidad esencial-, a participar en el patrimonio y en la actividad cultural de la comunidad a que pertenece; y genera el deber -responsabilidad- para las autoridades públicas de propiciar los medios adecuados de participación efectiva para garantizar el acceso y ejercicio de este derecho, en la medida en que los recursos de que disponga lo permitan.

De este modo, la cultura se constituye en el elemento de conciencia más significativo para la salvaguardia del patrimonio esencial que define la identidad nacional en diversos niveles, y que comprende la protección del folklore, el estímulo de intelectuales y artísticas, el fomento del intercambio internacional, la protección del patrimonio cultural, el fomento del desarrollo de las artes, la educación artística y el fomento del libro. Es así como todo hombre tiene derecho a la cultura, del mismo modo que a la educación, al trabajo y la libertad de expresión, derechos fundamentales con los que guarda directa relación. En este sentido, son innumerables las resoluciones y declaraciones de orden internacional que reconocen formalmente el derecho a la cultura. Así en la resolución IX aprobada por la Conferencia Interamericana sobre Problemas de la Guerra y la Paz (realizada en México del veintiuno de febrero al ocho de marzo de mil novecientos cuarenta y cinco), en cuyo apartado 13 los Estados de América reconocen expresamente:

"Entre los derechos del hombre figura, en primer término, la igualdad de oportunidades para disfrutar de todos los bienes espirituales y materiales que ofrece nuestra civilización, mediante el ejercicio lícito de su actividad, industria y su ingenio." La Declaración Americana de los Derechos y Deberes del Hombre (aprobada en la Novena Conferencia Internacional Americana, el cinco de mayo de mil novecientos cuarenta y ocho, en Bogotá, Colombia) reconoce el derecho a los beneficios de la cultura:

"Toda persona tiene derecho de participar en la vida cultural de la comunidad, gozar de las artes y disfrutar de los beneficios que resulten de los progresos intelectuales y especialmente de los descubrimientos científicos.

Tiene, asimismo, derecho a la protección de los intereses morales y materiales que le corresponden por razón de los inventos, obras literarias, científicas y artísticas de que sea autor." Resultan interesantes las consideraciones del Preámbulo de esta Declaración, en tanto contiene ciertos enunciados vinculados a la cultura, y que permite una mejor interpretación de esa disposición:

"Todos los hombres nacen libres e iguales en dignidad y derechos y, dotados como están por naturaleza de razón y conciencia, deben conducirse fraternalmente los unos con los otros" (párrafo primero); "Es deber del hombre servir al espíritu con todas sus potencias y recursos porque el espíritu es la finalidad suprema de la existencia humana y su máxima categoría" (cuarto párrafo); "Es deber del hombre ejercer, mantener y estimular por todos los medios a su alcance la cultura, porque la cultura es la máxima expresión social e histórica del espíritu" (párrafo quinto).

La libertad de la cultura, como condición esencial para su desarrollo, fue también consagrada en el artículo 4 de esta Declaración Americana:

"Toda persona tiene derecho a la libertad de investigación, de opinión y de expresión y difusión del pensamiento por cualquier medio".

En conexión con este derecho, se relaciona el reconocido que en el artículo 15, se hace del derecho al descanso y a su aprovechamiento. Por su parte, la Declaración Universal de Derechos Humanos (aprobada el diez de diciembre de mil novecientos cuarenta y ocho) reconoce el derecho a la cultura en su artículo 27.1, que tiene el mismo contenido del 13 de la Declaración Americana -antes transcrito-. Este derecho debe ser comprendido dentro del complejo marco de derechos humanos que se reconocen en esta Declaración internacional. Es importante resaltar que como presupuesto indispensable para garantizar el derecho a la cultura, se ubica el derecho a la educación. Los derechos culturales motivaron la aprobación del Pacto Internacional de Derechos Económicos, Sociales y Culturales, por Naciones Unidas en mil novecientos sesenta y seis -ratificado por Ley número 4229, de once de diciembre de mil novecientos sesenta y seis-. Además del reconocimiento del derecho a la educación -en el artículo 13-, reconoce el derecho individual a la cultura en el artículo 15:

"1. Los Estados partes en el presente Pacto reconocen el derecho de toda persona a:

• a)participar en la vida cultural; b) gozar de los beneficios del progreso científico y de sus aplicaciones; c) beneficiarse de la protección de los intereses morales y materiales que le correspondan por razón de las producciones científicas, literarias o artísticas de que sea autora.

2. Entre las medidas que los Estados partes en el presente Pacto deberán adoptar para asegurar el pleno ejercicio de este derecho, figurarán las necesarias para la conservación, el desarrollo y la difusión de la ciencia y de la cultura.

3. Los Estados partes en el presente Pacto se comprometen a respetar la indispensable libertad para la investigación científica y para la actividad creadora.

4. Los Estados partes en el presente Pacto reconocen los beneficios que derivan del fomento y desarrollo de la cooperación y de las relaciones internacionales en cuestiones científicas y culturales." La Carta Constitutiva de la Organización de los Estados Americanos (OEA) -de mil novecientos sesenta y siete-, en su artículo 48 ratifica los anteriores principios:

"Los Estados miembros [...] asegurarán el goce de los bienes de la cultura a la totalidad de la población, y promoverán el empleo de todos los medios de difusión para el cumplimiento de estos propósitos." A esta norma hace referencia el artículo 26 de la Convención Americana sobre Derechos Humanos, ratificada por Ley número 4543, de veintitrés de febrero de mil novecientos setenta, en cuanto dispone:

"Desarrollo Progresivo Los Estados Partes se comprometen a adoptar providencias, tanto a nivel interno como mediante la cooperación internacional, especialmente económica y técnica, para lograr progresivamente plena efectividad de los derechos que se derivan de las normas económicas, sociales y sobre educación, ciencia y cultura, contenidas en la Carta de la Organización de los Estados Americanos, reformada por el Protocolo de Buenos Aires, en la medida de los recursos disponibles, por vía legislativa y otros medios apropiados." Estos instrumentos internacionales han centrado sus esfuerzos en tres aspectos fundamentales: el desarrollo e incentivo a la cultura, la cooperación cultural internacional y el derecho a la cultura, los cuales adquieren plena coercitividad al derivar de tratados de derechos humanos debidamente ratificados por nuestro país.

XXI. DEFINICIÓN DEL OBJETO DE PROTECCIÓN

EL "BIEN CULTURAL" COMO BIEN JURÍDICO PROTEGIDO. La denominación y concepción de los objetos que tutela el patrimonio histórico ha evolucionado en la ciencia jurídica, de manera que ahora se hace extensiva a diversas categorías de bienes, sea: los inmuebles de interés cultural -entre los que se incluyen, los monumentos, las bellezas naturales, los sitios-; los muebles no incorporados ni afectados por decreto ejecutivo al patrimonio cultural de la Nación, pero que tienen una singular relevancia, sobre todo a partir de las regulaciones internacionales que se analizarán a continuación, los arqueológicos -que son de dominio público-; el patrimonio etnográfico, el científico, el técnico, el industrial antropológico, y el bibliográfico; con lo cual, la protección abarca también las costumbres, el folklore, los ritos, las creencias, fiestas y la gastronomía. Todos estos bienes han sido agrupados en la denominación de "bien cultural".

Esta nueva concepción, mucho más amplia de la realidad protegida por el ordenamiento jurídico, nace en Italia, y se sustenta en la razón última que motiva la protección y tutela del bien, sea el valor cultural inmanente en estos bienes, es decir, en la medida en que nos aproxima a la histórica de la civilización, a los diversos modo (sic) de vivir, al pensamiento y sentir de los hombres en el tiempo y en el espacio. El valor cultural puede tener muchas manifestaciones, tales como la referencia histórica, artística, científica, arqueológica, paleontológica, etnográfica o técnica que se hacen presentes en bienes de diversa clase. Se requiere de un interés digno de conservación en su individualidad o en conexión con otros bienes, que es el caso de la protección de los conjuntos urbanos, macro conjuntos o conjuntos itinerantes. La esencia de la protección lo constituye el interés o valor intrínseco del bien, en tanto es representativo de la historia, el arte, la ciencia o la industria de un pueblo, y que por ello coadyuva a la identidad de la nación.

XXII. DE LAS REGULACIONES INTERNACIONALES EN LA MATERIA

En cuanto al desarrollo de la protección de los bienes culturales, como derivado del derecho a la cultura, resulta importante hacer mención a la gran producción de normas de orden internacional que la Organización de las Naciones Unidas para la Educación, la Ciencia y la Cultura (UNESCO) y la Organización de los Estados Americanos (OEA), han aprobado con la finalidad de procurar entre los Estados Parte, la efectiva tutela y protección del patrimonio cultural mundial y nacional, que comprende, según lo anotado anteriormente, el patrimonio histórico-arquitectónico, los bienes muebles, el patrimonio natural, la arqueología y el folclore. Se trata de una serie de Convenciones y Recomendaciones sobre la materia que constituyen normativa y fuente de derecho en Costa Rica, susceptibles de ser aplicados directamente por esta Sala Constitucional para la resolución de este asunto. En los casos en que han sido ratificadas por nuestro país, se trata de cuerpos normativos incorporados a nuestro ordenamiento jurídico, con valor superior al de la ley, por disposición expresa del artículo 7 de la Constitución Política.

Y en los casos en que no han sufrido el procedimiento previsto para su debida incorporación, son fuente de derecho, en los términos previstos en el artículo 48 constitucional. A este respecto, debe tenerse en cuenta que la mayoría de estas Convenciones y Recomendaciones fueron aprobadas por un organismo especializado de las Naciones Unidas, sea, la Organización de las Unidas para la Educación, la Ciencia y la Cultura (UNESCO), cuya labor la coordina el Consejo Económico y Social de las Naciones Unidas, y de la cual Costa Rica es Parte, y como tal, se enmarcan dentro de las normas de la Carta de las Naciones Unidas, teniéndose en cuenta que uno de los objetivos de la creación de esta organización, es precisamente el "Realizar la cooperación internacional en la solución de problemas internacionales de carácter económico, social, cultural o humanitario, y en el desarrollo y estímulo del respeto a los derechos humanos y a las libertades fundamentales de todos, sin hacer distinción por motivos de raza, sexo, idioma o religión;" (artículo 1.3 de la Carta de las Naciones Unidas); para lo cual, se faculta a la Asamblea General para promover estudios y recomendaciones para la consecución de este fin (artículo 13.1.b de la Carta). En los artículos 55, 57.1, 57.2 y 58 en relación con el 63, se reconoce la vinculación de los organismos especializados con la Organización, y en especial, el 64.1, en tanto dispone textualmente:

"1. El Consejo Económico Social podría tomar las medidas apropiadas para obtener informes periódicos de los organismos especializados. También podrá hacer arreglos con los Miembros de las Naciones Unidas y con los organismos especializados para obtener informes con respecto a las medias tomadas para hacer efectivas sus propias recomendaciones y las que haga la Asamblea acerca de materias de la competencia del Consejo." Asimismo, debe tenerse en cuenta que en los artículos 5 y 7.2.c de la Convención de Viena sobre los Tratados (ratificada mediante Ley número 7615, de dieciséis de julio de mil novecientos noventa y seis) se reconoce el valor normativo de los instrumentos adoptados en el ámbito de las organizaciones internacionales. Respecto de las Convenciones, Cartas o Recomendaciones aprobadas por el Consejo Internacional de Monumentos y Sitios (ICOMOS), debe tenerse en cuenta que se trata de una dependencia de la UNESCO, por lo que la vinculación y coercitividad de sus disposiciones deriva del organismo internacional a la que está supeditada.

Por último, en relación con las Normas de Quito, debe señalarse que su vinculación deriva de lo dispuesto en los incisos 10) y 12) del artículo 140 de la Constitución Política y el artículo 7.2.a de la Convención de Viena sobre los Tratados, por cuanto fueron acordadas en la reunión de Presidentes Latinoamericanos en mil novecientos sesenta y siete, en tanto el Presidente de la República ejerce su papel de co-conductor de la política internacional (sentencia número 6624-94, de las nueve horas del once de noviembre de mil novecientos noventa y cuatro). De tal suerte, que para esta Sala no se trata de simples recomendaciones en materia de derechos humanos, pues si los Estados deciden voluntariamente autolimitarse o asumir una serie de obligaciones y compromisos para hacer efectivo un derecho fundamental, éstas constituyen fuente normativa del derecho de la Constitución, pues son actos provistos de plena normatividad en el ordenamiento constitucional costarricense, sin que se les pueda considerar simples enumeraciones y metas a alcanzar.

XXIII.Al tenor de las anteriores consideraciones, de las regulaciones internacionales sobre la materia pueden derivarse los siguientes principios vinculantes y de interpretación a fin de garantizar una efectiva tutela del patrimonio cultural de la nación:

a.- de la Convención sobre la protección de los bienes culturales en caso de conflicto armado, su Reglamento y Protocolo, aprobados en la Conferencia Internacional de Estados convocada por la UNESCO, el catorce de mayo de mil novecientos cincuenta y cuatro, y suscritos por Costa Rica el tres de marzo de mil novecientos noventa y seis: se constituye en obligación internacional el respeto del patrimonio cultural -conformado por los bienes muebles, inmuebles, monumentos de arquitectura, de arte o de historia, religiosa o secular, los campos arqueológicos, los conjuntos históricos, así como las colecciones científicas, de libros, archivos o reproducciones-, cualquiera que sea su origen o pertenencia legal en tiempos de guerra (países enemigos); en tiempos de paz, cada país debe fomentar la debida protección de estos bienes; se prohíbe el robo, pillaje, apropiación ilícita o vandalismo, y se procura la implementación de medidas de prevención para evitar estas situaciones; el compromiso de los Estados Partes de enviar a la UNESCO informes cada 4 años sobre las medidas implementadas; reconoce la importancia del patrimonio arqueológico; b.- de la Recomendación que define los principios internacionales que deberán aplicarse a las excavaciones arqueológicas: aprobada en la Conferencia General de la UNESCO, en Nueva Delhi, el seis de diciembre de mil novecientos cincuenta y seis: obliga a los Estados partes a someter las excavaciones arqueológicas que sean llevadas en sus territorios, a una estricta vigilancia y previa autorización de las autoridades competentes, y el sometimiento a principios a principios técnicos para llevar a cabo las excavaciones; c.- de la Carta Internacional sobre la conservación y la restauración de monumentos y de conjuntos históricos-artísticos: aprobada por el Consejo Internacional de Monumentos y Sitios (ICOMOS), en Venecia en mil novecientos sesenta y cinco; es el texto de mayor resonancia y significación internacional, vigente y reconocido a nivel internacional, cuya definición de monumento, comprende tanto la creación artística aislada y como el sitio urbano o rural que ofrece el testimonio de una civilización particular, de una fase representativa de la evolución o proceso, o de un suceso histórico, así como también las grandes y las modestas obras que han adquirido con el tiempo significación cultural; reconoce la inseparabilidad del monumento con la historia que atestigua; establece que la protección y conservación del monumento implica también la de un marco a escala, es decir, la protección del entorno; prohíbe las nuevas construcciones, demoliciones o reformas que puedan alterar las relaciones de volúmenes, colores, estilos de las edificaciones incorporadas al patrimonio cultural; establece el principio de que la restauración es de carácter excepcional, con el fin de conservar y revelar los valores estéticos e históricos del momento, y su respeto a los elementos antiguos y las partes auténticas, y a tal efecto, se diferencia entre la conservación y la restauración; establece la obligación de proteger los sitios y conjuntos urbanos, y la necesidad de preservar la identidad del monumento, evitando alterar esencialmente su apariencia o naturaleza; establece la necesidad de hacer inventarios y catálogos; la necesidad de mantener edificios en su sitio, arraigados del suelo; y la de conservar los muebles originales del inmueble; d.- de la Recomendación relativa a la protección de la belleza y del carácter de los lugares y paisajes: aprobada en la Conferencia General de la UNESCO en la 12a. sesión, en París, el doce de diciembre de mil novecientos sesenta y dos: intenta asegurar la preservación de los lugares naturales y rurales originales, el paisaje urbano y otros emplazamientos creados o no por el hombre y su restauración; establece la importancia científica y estética de los lugares naturales y paisajes urbanos, en tanto forman parte de un patrimonio, que es factor primordial en las condiciones generales de la vida de los pueblos; la necesidad de implementar medidas preventivas de control sobre las actividades y operaciones que puedan afectarlos, como lo son, las previsiones especiales en los planes de desarrollo urbano y regional y las programaciones por zonas; la necesidad de establecer y mantener reservas y parques naturales, así como la adquisición de terrenos para la comunidad; la necesidad de servicios especializados, con amplios poderes que se hagan responsables de las medidas de preservación; y pone énfasis en las actividades educativas a fin de concientizar a la población en relación a la importancia de esta protección; e.- de las Normas de Quito: aprobada en la Reunión de Presidentes Latinoamericanos en mil novecientos sesenta y siete: desarrolla el principio de "puesta en valor", que consiste en la recuperación económica y social del monumento, acorde con las necesidades de la sociedad latinoamericana; reconoce la importancia de proteger los centros históricos y su función social, bajo la fórmula del fomento del turismo; concluye que la tutela del Estado debe extenderse al contexto urbano del monumento, al ámbito natural que lo rodea y a los bienes culturales que encierra; es decir, todo lo relativo a la protección del entorno; establece la importancia de la protección de los bienes muebles y otros objetos valiosos del patrimonio; y la urgencia de la problemática, que requiere de la cooperación internacional por la significativa importancia de la recuperación del patrimonio cultural, en tanto representa un valor económico susceptible de ser instrumento de progreso (principio de "puesta en valor"); f.- de la Recomendación sobre la protección en el ámbito nacional del patrimonio cultural y natural: Aprobada en la Conferencia General de la UNESCO en la 17a. sesión, en París, el dieciséis de noviembre de mil novecientos sesenta y ocho: intenta inducir a los Estados a proteger todos los componentes de los patrimonios culturales y naturales; incluye la identificación, estudio, conservación, restauración, apariencia física e integración dentro de la sociedad contemporánea, para lo cual se exige el mantenimiento al día de los respectivos inventarios, y el levantamiento de mapas y documentación apropiada; establece la obligación de los Estados partes de diseñar programas de conservación y preservación del patrimonio cultural nacional, para conservar su apariencia tradicional, y de restaurar áreas de patrimonio cultural dañadas por el hombre, a cargo de servicios especializados, asistidos por organismos consultivos; g.- de la Recomendación sobre la conservación de los bienes culturales que la ejecución de obras públicas y privadas pueda poner en peligro: aprobada por la Conferencia General de la UNESCO en la 15a. sesión, en París, el veinte de noviembre de mil novecientos sesenta y ocho: establece la pauta de que la preservación del patrimonio cultural debe armonizar con el avance de la tecnología socio-económica; reitera la necesidad de levantar inventarios de los bienes culturales, en los que debe darse prioridad a los que están en peligro por causa de obras públicas o privadas, para su utilización en la investigación y estudio; importancia de la implementación de medidas cautelares, de manera que se facilite y permita la ayuda especializada a fin de prevenir las repercusiones negativas en las obras que puedan ocasionar a los bienes protegidos; aboga por la conservación "in situ", es decir, en su lugar original de los bienes culturales; sin embargo, si las condiciones socio-económicas requieren la transferencia -como el abandono o la posible destrucción-, se debe realizar su traslado, mediante estudios científicos adecuados; sienta el principio de que la preservación del bien debe provenir de presupuestos especiales, o de las obras públicas o privadas que causan el daño (principio propia del Derecho Ambiental: "el que contamina, paga"); h.- de la Convención sobre las medidas que deben adoptarse para prohibir e impedir la importación, la exportación y la transferencia de propiedad ilícitas de bienes culturales: aprobada en la décima Conferencia General de la UNESCO, en la 16a. sesión, en París, el catorce de noviembre mil novecientos setenta; ratificada por Costa Rica por la Ley número 7526, de cinco de julio de mil novecientos noventa y cinco: incluye dentro del concepto de patrimonio cultural todos aquellos bienes de valor etnológico, arqueológico, natural, artístico y técnico; reconoce que la exportación de la propiedad ilícita de los bienes culturales constituye una de las causas principales del empobrecimiento del patrimonio cultural, por lo que compromete a los Estados Partes de combatir estas prácticas, mediante el fomento de la cooperación internacional y la creación de los servicios de protección necesarios: tales como la promulgación de la normativa respectiva, la instauración y manutención de inventarios y catálogos, el fomento y desarrollo de instituciones científicas y técnicas especializadas -como los museos, bibliotecas, archivos, talleres, laboratorios-, necesarias para garantizar la conservación y valorización de los bienes culturales, el control de las excavaciones arqueológicas, la conservación "in situ" de los bienes culturales, la reserva de ciertas zonas para la investigación, el fomento de la acción educativa, la publicidad apropiada a los casos de desaparición de patrimonio cultural, el establecimiento de impedimentos, tanto para la salida de los bienes que no cuenten con el certificado adecuado, como para la importación de bienes culturales robados, y la tomar de las medidas necesarias para su decomiso y restitución; i.- de la Convención sobre la protección del patrimonio cultural y natural: aprobada en el marco de la Conferencia General de la UNESCO, en la 17a. sesión, en París, el 23 de noviembre de mil novecientos setenta y dos; ratificada por Ley número 5980, de veintiséis de octubre de mil novecientos setenta y seis: cuyo objeto de protección es el patrimonio cultural, que comprende los monumentos -obras arquitectónicas, de escultura o de pintura monumentales, elementos o estructuras de carácter arqueológico, inscripciones de cavernas y grupos de elementos, así como los conjuntos -grupos de construcciones, aisladas o reunidas- y los lugares, que tengan un valor universal excepcional desde el punto de vista de la ciencia, el arte o la historia; el patrimonio natural; reconoce el deber de la comunidad internacional de cooperar en la protección del bien cultural, por lo cual establece el marco legal e institucionaliza las prácticas en cuanto a la cooperación internacional para la protección del patrimonio cultural de la Humanidad, el cual comprende el patrimonio natural, la cual se realizará a través de un fondo fiduciario con varias fuentes de captación (las contribuciones de obligaciones y voluntarias de los Estados Partes, contribución de la UNESCO, aportaciones de los organismos internacionales, así como de las instituciones públicas y particulares, según petición justificada de los Estados); todos los Estados partes reconocen que la responsabilidad de la conservación del patrimonio de valor universal ubicado en su jurisdicción (territorio) corresponde en primer término a cada uno de ellos, para lo cual se comprometen a tomar las medidas necesarias; reitera la exigencia de elaborar inventarios de las propiedades en su territorio; y que la asistencia de los Estados también se manifiesta en forma de estudios, servicios de personal especializado, formación de profesionales, equipo, préstamos favorables, y subvenciones no reintegrables; e instaura programas educativos e informáticos sobre el valor del patrimonio, las amenazas que sufre y de las actividades de aplicación de la Convención; j.- de la Convención sobre la defensa del patrimonio arqueológico, histórico y artístico de las Naciones Americanas (Convención de San Salvador), aprobada en el sexto período ordinario de sesiones ordinarias de la Asamblea General de la Organización de los Estados Americanos (OEA), en Santiago de Chile, el dieciséis de junio de mil novecientos setenta y seis; ratificada por Ley número 6360, de veinte de agosto de mil novecientos setenta y nueve: cuyo objeto es el patrimonio cultural en sus diversas categorías: sea los monumentos, objetos, fragmentos de edificios desmembrados, material arqueológico, edificios, objetos artísticos, utilitarios, etnológicos, bibliotecas, archivos, libros, mapas y documentos).

Los propósitos de esta convención son la identificación, registro, protección y vigilancia de los bienes que integran el patrimonio cultural de las naciones americanas, el impedir la importación y exportación ilícita de bienes culturales y la promoción de la cooperación internacional para el mutuo conocimiento y apreciación de sus bienes culturales. Es así como se promueve que cada Estado Parte establezca la regulación interna pertinente, la cual deberá promover como mínimo las siguientes medidas: el registro de las colecciones públicas y privadas y del traspaso de los bienes culturales sujetos a protección, el registro de transacciones de los establecimientos que se dediquen a la compraventa de este tipo de bienes, y la prohibición de importar bienes culturales provenientes de otros Estados sin la certificación y autorización correspondientes. Se promueve la creación e implementación de registros de los bienes culturales de la nación, el control de las excavaciones arqueológicas, así como la cooperación internacional para la recuperación y restitución de los bienes robados, y para el fomento del mutuo conocimiento y apreciación de los valores culturales -intercambio y exhibición de bienes culturales e informaciones-; k.- de la Recomendación relativa a la salvaguardia de los conjuntos históricos y su función en la vida contemporánea: aprobada en el marco de la Conferencia General de la UNESCO, en la 19a. sesión en Nairobi, el veintiséis de noviembre de mil novecientos setenta y seis: invita a los países a adoptar una política general de salvaguardia para la preservación de construcciones arqueológicas, paleontológicas, urbanas, rurales de valor histórico, arqueológico, arquitectónico, histórico, estético o sociocultural dentro de sus territorios, para lo cual deberán establecer: un sistema específico de protección del patrimonio cultural (áreas históricas, conjuntos) a nivel jurídico, técnico, económico y social, que debe influir en el planeamiento nacional, regional y local, orientar la planificación urbana, que se concrete en la formulación de objetivos y programas; la designación de un organismo o institución especializada encargada de llevar a cabo esta labor; la implementación de inventarios de los bienes que deben protegerse (tales como las edificaciones -públicas o privadas-, espacios abiertos, así como su vegetación), con resúmenes analíticos complementos de cada uno, en tanto constituyen un patrimonio universal irremplazable; la obligación de la salvaguardia e integración en la vida colectiva o revitalización económica-social de las áreas históricas, tanto para los gobiernos, como para sus ciudadanos: esto es, que se fomente en ellas el comercio, la artesanía, el desarrollo de actividades culturales, el uso habitacional, y el turismo (principio de "puesta en valor"); la protección integral del patrimonio cultural, y en especial de los conjuntos históricos, con lo cual se extiende a todos los elementos que lo componen, que comprende tanto los edificios, la estructura espacial y las zonas circundantes, como las actividades humanas, por modestas que sean (entorno); la tutela efectiva del patrimonio cultural se traduce en la prevención de todo tipo de deterioro físico, en especial los resultantes de un uso inapropiado, aditamento de parásitos y transformaciones abusivas o desprovistas de sensibilidad que dañan su autenticidad, así como los provocados por cualquier forma de contaminación; se reitera el principio de que la restauración es de carácter excepcional, la cual, en caso de efectuarse, debe basarse en principios científicos; la ayuda estatal en la conservación de este patrimonio, la cual se traduce en la planificación y planeamiento, asistencia técnica especializada, el otorgamiento de donaciones, ventajas fiscales, subsidios o préstamos blandos y adecuados para estos fines a los propietarios privados y sus usuarios, las cuales quedan subordinadas al respeto de ciertas condiciones impuestas en razón del interés público, como el garantizar la integridad de los edificios, la posibilidad de visitar los inmuebles, el tener acceso a los parques, jardines o lugares, tomar fotografías, la realización de inspecciones, etc.; el fomento de la creación de fundaciones y asociaciones sin fines de lucro como órganos consultivos en la materia; la promoción de la investigación y estudio sistemático a fin de capacitar a los especialistas y artesanos, en los aspectos urbanísticos y de planificación del territorio, a la alteración de los materiales, la aplicación de las técnicas modernas al trabajo de conservación, y a las técnicas artesanales indispensables para la salvaguardia de este patrimonio, así como la educación (escolar, post-escolar y universitaria) para concientizar a la ciudadanía en general de la importancia de esta tutela; y el compromiso de la cooperación internacional en esta materia, tanto respecto de otros Estados, como de las organizaciones internacionales, intergubernamentales, de carácter privado, y en particular con el Centro de Documentación de la UNESCO (ICOMOS e ICOM); l.- de la Recomendación sobre el intercambio internacional de bienes culturales: aprobada en el marco de la Conferencia General de la UNESCO en la 19a. sesión, en Nairobi, el veintiséis de noviembre de mil novecientos setenta y seis: parte de la consideración de que todos los bienes culturales forman parte del patrimonio cultural común de la Humanidad, y que cada Estado tiene una responsabilidad a ese respecto, no sólo para beneficio de sus nacionales, sino también para la comunidad internacional, por lo que se promueve la circulación de estos bienes entre instituciones culturales de los diferentes países, a fin de enriquecer el patrimonio cultural internacional y promover su mejor utilización; para lo cual los Estados se comprometen a implementar las medidas jurídicas para eliminar las trabas arancelarias y de aduanas, a fin de facilitar el intercambio bilateral o multilateral desinteresado de los bienes culturales; la creación o implementación de registros de las demandas y ofertas de intercambio disponibles para el intercambio; establece los principios operativos de este tipo de intercambio (seguros, ayudas económicas, determinación de la situación jurídica de estos bienes, la asistencia de organismos especializados); la necesidad de la cooperación internacional para llevar a cabo esta tarea; y los mecanismos necesarios para combatir el tráfico ilícito de los bienes culturales; m.- de la Recomendación sobre la protección de los bienes culturales muebles: aprobada en la Conferencia General de la UNESCO, en su 20a- reunión, en París, el veintiocho de noviembre de mil novecientos setenta y ocho: obliga a los Estados a intensificar las medidas de prevención y de gestión de los riesgos a que se puedan ver sometidos los bienes culturales muebles, de valor arqueológico, artístico, científico o técnico, artesanal, de interés antropológico y etnológico -tales como los manuscritos, artesanía, libros, documentos de interés especial, mapas, mobiliario, tapices, alfombras, trajes, instrumentos musicales, especímenes de zoología, botánico o geología-, con objeto de garantizar una protección eficaz de estos bienes y disminuir el costo de cobertura de los riesgos correspondientes; se sienta el principio de que la protección y prevención de los riesgos son mucho más importantes que la indemnización en el caso de deterioro o de pérdida del bien, por cuanto la finalidad esencial consiste en preservar el patrimonio cultural y no en sustituir unos objetos irremplazables por sumas de dinero; la necesidad del establecimiento sistemático de inventarios y repertorios relativos a los bienes culturales muebles, en el que se registren -con la mayor precisión y métodos actuales- sus características y especificaciones identificadoras; estimular a los museos e instituciones similares, públicas y privadas, a reforzar la prevención de los riesgos mediante la adopción de sistemas y dispositivos prácticos de seguridad (aseguramiento de los bienes, condiciones de almacenamiento, de exposición, y de transporte); el otorgamiento de créditos y facilidades económicas, así como incentivos y/o beneficios fiscales, para estos efectos; la necesaria capacitación y especialización del personal de estas instituciones; el establecimiento de un organismo oficial responsable del asesoramiento y organización de los museos; fomentar la educación e información de la población al respecto, para concientizar acerca de la importancia y valor de los bienes culturales y de la necesidad de su protección; la adopción de sanciones (penales, civiles, administrativas); así como el fomento de la cooperación internacional (coordinación) para combatir los daños, robos, secuestros y demás hechos ilícitos que pongan peligro los bienes culturales; n.- de la Carta Internacional de ICOMOS para la protección de las ciudades históricas: aprobada en Washington, en mil novecientos ochenta y siete: define los principios y objetivos, métodos e instrumentos de la acción propia para mantener la calidad de vida de las ciudades históricas, de manera que se armonice la vida individual y social con el objetivo de perpetuar el conjunto de bienes que constituyen la memoria de la humanidad; se fomenta la protección de las grandes y pequeñas ciudades, los barrios con su entorno, que además de su valor histórico, manifiesta valores propios de las civilizaciones urbanas tradicionales, o amenazadas de degradación, destrucción o desestructuración; sienta el principio de la cuidadosa planificación, que forme parte de una política coherente de desarrollo económico, realizada por un equipo de profesionales pluridisciplinario a fin de que el rescate de las ciudades y barrios sea eficaz; los valores a preservar son el carácter histórico de la ciudad y el conjunto de elementos materiales y espirituales que expresan su imagen; el principal objetivo de la acción protectora es el mejoramiento del hábitat, entendiendo por tal, el medio ambiente urbano; el plan de mantenimiento permanente de la infraestructura comienza con la implementación de medidas preventivas o cautelares, para posteriormente, establecer el plan de protección especial; la preservación admite elementos contemporáneos siempre que no dañen la armonía del conjunto y que contribuya a su enriquecimiento; se establece el principio de la regulación del tránsito dentro de las ciudades y barrios históricos, y la prohibición absoluta de construir carreteras dentro de ellos; y por último la necesidad de implementar medidas preventivas contra las catástrofes naturales y peligros potenciales, tales como el ruido, la polución, la contaminación, la basura, el tránsito, etc.; o.- de la Recomendación sobre la salvaguardia de la cultura tradicional y popular: aprobada en la Conferencia General de la UNESCO, en la 25a. sesión, en París, el quince de noviembre de mil novecientos ochenta y nueve: parte del principio de que la cultura tradicional y popular forma parte del patrimonio universal de la humanidad, como un poderoso medio de acercamiento entre los pueblos y grupos sociales existentes y de la identidad cultural, y como expresión de la cultura viviente, y que los Estados deben desempeñar un papel decisivo en la salvaguardia y difusión de la cultura tradicional y popular, en lo que respecta a la toma de acciones para su fomento y promoción; motivo por el que se protegen, entre otras, la lengua, la literatura, la música, la danza, los juegos, la mitología, los ritos, las costumbres, la artesanía, la arquitectura y otras artes. Establece la necesidad de fomentar un esquema general de clasificación, identificación y registro, tanto de las instituciones como de la cultura tradicional y popular.

XXIV. DEFINICIÓN DEL PATRIMONIO HISTÓRICO-ARQUITECTÓNICO

Al tenor de las anteriores consideraciones, el patrimonio histórico-arquitectónico se enmarca dentro de la clasificación de bien cultural, y por ello se configura como un tipo especial de propiedad, caracterizado por un régimen específico de intervención estatal dirigido a la conservación del objeto. Ese carácter viene dado por la propia naturaleza y circunstancias objetivas del bien. Comprende el conjunto de bienes culturales de carácter arquitectónico, sean edificaciones aisladas o conjuntos de ellas, parajes naturales u obras de infraestructura, urbanas o rurales, de propiedad privada o estatal, que vienen del pasado, o son producto de técnicas novedosas, por lo cual son el resultado de la experiencia colectiva de una determinada sociedad, comunidad o etnia; y por ello, dadores de identidad grupal, popular o nacional. Su determinación está asociada a coyunturas históricas o culturales relevantes, o con patrones socio-culturales de importancia de la comunidad, región o el país.

Asimismo, presentan un aporte en el desarrollo técnico, constructivo y/o funcional en la arquitectura, y por ello, poseen un valor arquitectónico, histórico o artístico de significación. También pueden presentar características formales de carácter tipológico, estilístico y urbanístico que contribuyen al carácter tradicional distintivo del ambiente inmediato. Por ello, la determinación del patrimonio histórico-arquitectónico -como tal- es un concepto indeterminado para la ciencia jurídica, e implica la conjunción de los diversos intereses en juego, sea, la necesidad de un juicio valorativo basado en la aportación de disciplinas no jurídicas y que son de índole técnico, tales como la arqueología, la arquitectura, la ciencia, la tecnología, la historia o el arte-, a fin de determinar el valor cultural (artístico, científico, etc. propio de ese bien). De esta suerte, la Administración no actúa en forma discrecional, sino que implica un proceso valorativo-objetivo.

Es importante resaltar que la determinación del bien histórico-arquitectónico comprende, tanto la delimitación del bien, como la del entorno que resulte necesario para su debida protección y puesta en valor de aquél, y que justifican, precisamente su protección; así como también comprende la del área geográfica a que pertenece, sea, la del paraje natural que conforma su entorno (concepción integral del ambiente).

XXV.A efectos del estudio, resulta significativa la cita del escritor francés Víctor Hugo, al margen de todo tecnicismo jurídico:

"Hay dos cosas en un edificio, su uso y su belleza. Su uso pertenece al propietario; su belleza pertenece a todo el mundo. Por eso, aquél no tiene derecho a su destrucción." De tal suerte que en estos bienes está comprometido el goce del interés colectivo, y que es expresión máxima de la función social de la propiedad, agregamos los estudiosos del Derecho. En este sentido, es que se enmarca la definición del patrimonio arquitectónico, en tanto es una construcción material, y por lo tanto, con un evidente valor material, actual o potencial, del predio y de lo construido; al que se le otorga un valor o precio adicional y de orden inmaterial, que es el valor cultural de la edificación, derivado de sus atributos históricos y artísticos, y de la fuerza simbólica del imaginario social y la memoria colectiva; de difícil o imposible determinación pecuniaria. En razón de lo anterior, la Ley de Patrimonio Histórico-Arquitectónico, número 7555 expresamente declara de interés público "[...] la investigación, la conservación, la restauración, la rehabilitación y el mantenimiento del patrimonio histórico-arquitectónico" (párrafo segundo del artículo 2 de la Ley); lo cual denota la importancia y significación que el legislador da al patrimonio cultural, lo cual es un reconocimiento de los deberes derivados de las normas constitucionales supra citadas, sea, en los artículos 50 y 89.

XXVI. DE LA PROTECCIÓN DEL ENTORNO

A este aspecto, resultan también de significación los elementos que pueden considerarse consustanciales a los edificios, y forman parte de los mismos o de su adorno, y que en caso de ser separados, constituyan un todo perfecto de fácil aplicación a otras construcciones o a usos diferentes del original, aunque su separación no perjudique visiblemente el mérito histórico-artístico del inmueble al que están adheridos. Asimismo, la protección -en la mayoría de las legislaciones- se extiende al entorno, último logro necesario en la evolución normativa de este sector, el cual se define como el espacio que sin ser portador de un valor cultural en sí mismo, ejerce una influencia directa sobre la conservación y disfrute de las áreas que sí lo poseen; es decir, del monumento se pasa al conjunto, y de ahí al entorno, que consiste en un espacio más amplio en el que se insertan. Es un espacio de prevención o reserva, en orden a la defensa y conservación del ambiente propio de los monumentos y de los conjuntos históricos, y que en la legislación francesa se ha denominado como "ambiente del monumento".

Así, la protección legal y la acción administrativa que sobre estas áreas se despliega, se fundamenta en la adecuada conservación de los espacios culturales a los que sirve. La importancia del valor cultural del entorno es tal, que su no protección quiebra el valor cultural del monumento. Es por ello, es que resultan, no sólo válidas y legítimas, sino sobre todo necesarias, las ordenaciones urbanísticas que se dicten para resguardar el bien cultural, como lo son las relativas a la unificación de los colores de las fachadas, del estilo arquitectónico que se pueda usar, de la altura de las construcciones, y otras; y que son competencia, de las municipalidades -competencia urbana exclusiva, a partir de la jurisprudencia constitucional (en este sentido, entre otras ver sentencias números 2153-93; de las nueve horas veintiún minutos del veintiuno de mayo de mil novecientos noventa y tres; 5305-93, de las diez horas, seis minutos del veintidós de octubre de mil novecientos noventa y tres; 6706-93, de las quince horas veintiún minutos del veintiuno de diciembre de mil novecientos noventa y tres; 3494-94, del doce de julio de mil novecientos noventa y cuatro; 4205-96, supra citada y la número 5445-99, de las catorce horas treinta minutos del catorce de julio de mil novecientos noventa y nueve)- las cuales deben actuar en forma coordinada con el Ministerio de Cultura, Juventud y Deportes en esta materia.

Es así como las técnicas al servicio de la ordenación del territorio y planeamiento urbanístico tienen el deber de proceder desde su propio ámbito, a la adopción de cuantas medidas fueren necesarias para preservar el espacio en que se ubican los monumentos, sitios, conjuntos o centros históricos. Un ejemplo de esta protección lo constituye el artículo 7 de la Ley 5160, de veintiuno de diciembre de mil novecientos setenta y dos, que establece una protección del entorno en relación con el Teatro Nacional:

"Las fachadas de los edificios que se construyan en la manzana de donde se encuentra ubicado el Teatro Nacional, deberán contar con el visto bueno del Departamento de Urbanismo del Instituto Nacional de Vivienda y Urbanismo y de la Junta Directiva del Teatro Nacional." (Posteriormente se determinarán cuales (sic) son los órganos o instituciones públicas responsables de la tutela de este derecho, por implicar, tanto competencias de orden urbano, y que la jurisprudencia constitucional ha indicado que es de orden local -prioritaria y exclusivamente-, por lo que corresponde a las municipalidades; como en razón de la materia de que se trata, en tanto por disposición legal se le atribuye al Ministerio de Cultura, Juventud y Deportes el desarrollo y promoción de la cultura del país, con lo cual, se instituye en el órgano nacional asesor de esta materia).

XXVII.En relación a (sic) este punto, resulta ilustrativa la mención de las legislaciones francesa (Ley de los monumentos históricos francesa -Loi sur les monuments historiques, du 31 décembre de 1913-) y la española (Ley de 16, de 25 de junio de 1985), en que se establecen regulaciones para las construcciones que se ubican cerca de edificios de carácter histórico, artístico o arqueológicas en las que se exige la obligación de armonizar con los mismos. Específicamente, en el caso de la normativa francesa, se protegen, de manera general los edificios alineados o situados en el campo visible de un edificio clasificado, situado en un perímetro que no exceda los quinientos metros, cuya extensión puede extenderse -de ser necesario- mediante decreto ejecutivo (inciso c) del artículo 1°). De lo anterior, queda claro la necesaria integración del patrimonio cultural en el espacio más amplio que les circunda, lo cual quedó plasmado en la Recomendación de la UNESCO relativa a la protección de la belleza y del carácter de los lugares y paisajes -de 1962-, en la Carta internacional de ICOMOS sobre la conservación y la restauración de monumentos y de conjuntos histórico-artísticos -de 1964-, en las conclusiones de la reunión de Presidentes Latinoamericanos, conocida como las Normas de Quito -de 1967-, en la Recomendación de la UNESCO sobre la protección, en el ámbito nacional, del patrimonio cultural y natural -de 1972-, en la Carta Internacional de ICOMOS para la protección de las ciudades históricas -de 1987-, y en la Recomendación de la UNESCO sobre la salvaguardia de la cultura tradicional y popular -de 1989-, todas ellas regulaciones internacionales en las que se definió al entorno, tanto por los inmuebles colindantes inmediatos, como los colindantes o alejados, siempre que una alteración a éstos pudiese afectar los valores propios del bien que se trata, su contemplación, apreciación o estudio; y abarca el subsuelo, el espacio edificado o no que da apoyo ambiental al bien. Se vincula de manera tal al monumento, tal que su preservación es indisoluble al tratamiento que aquellos se dispense, que es lo que justifica su tratamiento.

XXVIII. DEL RÉGIMEN DE DESAFECTACIÓN DEL PATRIMONIO CULTURAL

Es de suma importancia aclarar que aún (sic) cuando la incorporación al patrimonio histórico-arquitectónico de la Nación, y por consiguiente, su afectación o dotación de una función pública, en este caso, su destino para la contemplación y enriquecimiento del patrimonio cultural de la nación, se realiza -generalmente- mediante decreto ejecutivo del Ministerio de Cultura, Juventud y Deportes, por cuanto nada impide que se realice mediante Ley de la República; su desafectación, no puede provenir de una normativa de rango reglamentario; de modo que, como parte integrante del medio ambiente, según se explicó anteriormente, requiere hacerse mediante una ley al efecto, previo estudio técnico y objetivo al respecto, en el que se constate que la edificación en cuestión perdió el valor cultural que justificó su afectación, sea, el histórico, el artístico, el científico o el arqueológico, en los términos previstos en el artículo 38 de la Ley Orgánica del Ambiente. La anterior aclaración, se hace para que tomen nota de ello, en lo que corresponda, las autoridades y funcionarios del Ministerio de Cultura, Juventud y Deportes.

XXIX. DE LA TITULARIDAD DEL PATRIMONIO HISTÓRICO-ARQUITECTÓNICO

A este respecto, es importante resaltar que -al igual que el régimen ambiental, tema con el que tiene gran paralelismo, según se había anotado anteriormente, comprende tanto bienes de propiedad del Estado, los cuáles, por la sola declaratoria de incorporación (afectación) adquieren las características propias de los bienes demaniales, en tanto están destinados a un servicio o función pública específico, en este caso la contemplación de la edificación, por cuanto el objetivo de la protección, conservación y preservación de este tipo de bienes es asegurar el mayor acceso de personas a la contemplación y disfrute de este tipo de bienes, que son herencia de la capacidad colectiva de un pueblo (cultura), y que por su especial naturaleza demanial, son imprescriptibles, inalienables e inembargables; como los de propiedad de particulares, donde la declaratoria de incorporación al patrimonio nacional en modo alguno implica el traslado de su titularidad al Estado (lo que sí sucedía al tenor de la normativa derogada, se la Ley número 5397), sino que, manteniéndose la titularidad en un particular, constata que la edificación en particular tiene un interés histórico-arquitectónico que justifica su mantenimiento y conservación en provecho de la colectividad nacional.

Es así como en este tipo de bienes se respeta el contenido esencial del derecho de propiedad, en los términos previstos en el artículo 45 de la Constitución Política, de manera tal que pueden hipotecarse, traspasarse, adquirirse por usucapión, así como también enajenarse o trasladarse su dominio, con la única advertencia de que en todos los casos, se traslada la afectación al régimen de patrimonio cultural, la cual se traduce en la obligación para el poseedor o propietario, del mantenimiento y conservación de la edificación o construcción que se ubique en el inmueble. Se trata de bienes con un régimen jurídico "sui géneris", normalmente dual, por cuanto su soporte material es susceptible de detentación pública o privada, tal y como está previsto en la Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, número 7555, de veintisiete de setiembre de mil novecientos noventa y cinco, que en el artículo 2, párrafo primero, dispone textualmente:

"Patrimonio histórico-arquitectónico Forma parte del patrimonio histórico-arquitectónico del país, el inmueble de propiedad pública o privada con significación cultural o histórica, declarado así por el Ministerio de Cultura, Juventud y Deportes de conformidad con la presente ley." Lo anterior implica que el centro de gravedad de esta protección no se sitúa en el régimen de titulación, sino en la condición de ser bienes con un valor espiritual de significación, destinados al disfrute colectivo, que sus detentadores deben hacer posible, sin perjuicio de los demás usos y utilidades compatibles con el bien. Resulta además importante la consideración, de que es absoluta y materialmente imposible, aún para los países desarrollados, la expropiación de la totalidad del patrimonio cultural, para que el Estado asuma las responsabilidad de mantener y conservar este tipo de bienes, primero, por la falta de recursos económicos públicos para que este proyecto se lleve a cabo, y en segundo, porque ello generaría el fenómeno denominado como la "museificación" del patrimonio cultural, que infringe uno de los principios básicos de la tutela de estos bienes, que es precisamente la "puesta en valor del bien", y que se traduce en la incorporación del bien histórico-arquitectónico en la actividad económico y social, como se explicará en Considerandos siguientes.

XXX. DEL RÉGIMEN DE PROTECCIÓN DEL PATRIMONIO HISTÓRICO-ARQUITECTÓNICO

Según se había anotado anteriormente, en los bienes que se incorporan al patrimonio cultural de la nación de propiedad estatal, adquieren las características propias de los bienes demaniales o también denominados, dominicales, esto es, están afectos a una función pública, en este caso, la contemplación de la edificación en particular, toda vez que el objetivo de la protección, conservación y preservación de este tipo de bienes es asegurar el mayor acceso de personas a la contemplación y disfrute de este tipo de bienes, toda vez que son herencia de la capacidad colectiva de un pueblo (cultura)-, y que por su especial naturaleza demanial, son imprescriptibles, inalienables e inembargables, en los términos previstos en los artículos 261 a 263 del Código Civil, cuya naturaleza jurídica fue sintetizada con anterioridad por este Tribunal, en sentencia número 2306-91, de las catorce horas cuarenta minutos del seis de noviembre de mil novecientos noventa y uno:

"El dominio público se encuentra integrado por bienes que manifiestan, por voluntad expresa del legislador, un destino especial de servir a la comunidad, al interés público. Son llamados bienes dominicales, bienes demaniales, bienes o cosas públicas, que no pertenecen individualmente a los particulares y que están destinados a un uso público y sometidos a un régimen especial, fuera del comercio de los hombres. Es decir, afectados por su naturaleza y vocación. En consecuencia, esos bienes pertenecen al Estado en el sentido más amplio del concepto, están afectados al servicio que prestan y que invariablemente es esencial en virtud de norma expresa. Notas características de estos bienes, es que son inalienables, imprescriptibles, inembargables, no pueden hipotecarse ni ser susceptibles de gravamen en los términos de Derecho Civil y la acción administrativa sustituye a los interdictos para recuperar el dominio.

Como están fuera del comercio, estos bienes no pueden ser objeto de posesión, aunque se puede adquirir un derecho al aprovechamiento, aunque no un derecho a la propiedad. El permiso de uso es un acto jurídico unilateral que lo dicta la Administración, en el uso de sus funciones y lo que se pone en manos del particular, es el dominio útil del bien, reservándose siempre el Estado, el dominio directo sobre la cosa. La precariedad de todo derecho o permiso de uso, es consustancial a la figura y alude a la posibilidad que la administración, en cualquier momento lo revoque, ya sea por la necesidad del Estado de ocupar plenamente el bien, por la construcción de una obra pública al igual que por razones de seguridad, higiene, estética, todo ello en la medida que si llega a existir una contraposición de intereses entre el fin del bien y el permiso otorgado, debe prevalecer el uso natural de la cosa pública.

En consecuencia, el régimen patrio de los bienes de dominio público, [...] los coloca fuera del comercio de los hombres y por ello los permisos que se otorguen serán siempre a título precario y revocables por la Administración, unilateralmente, cuando razones de necesidad o de interés general así lo señalan." Por su parte, en los bienes de propiedad particular que se incorporan al patrimonio cultural, este régimen especial de tutela se traduce en una serie de limitaciones de interés social a esa propiedad, permitida en los términos del artículo 45 de la Constitución Política, sea, que se mantiene el contenido esencial del derecho de propiedad, de manera tal que pueden hipotecarse, traspasarse, adquirirse por usucapión, así como también enajenarse o trasladarse su dominio, aprovecharse su utilidad económica y social, con la única advertencia de que en todos los casos, se traslada la afectación al régimen de patrimonio cultural, por cuanto este régimen debe ser consignado en el Registro Público de la Propiedad, y que se traduce en una serie de obligaciones para el poseedor o propietario tendentes a garantizar el mantenimiento y conservación de estos bienes.

Ello implica, en primer lugar la prohibición absoluta de la demolición parcial, y mucho menos, total de la construcción, así como también la obligación de su conservación y mantenimiento, y de ser necesario, de su restauración, a fin de facilitar la mejor exhibición o contemplación de la edificación a la población en general, lo cual se constituye en el principal objetivo de esta tutela jurídica, según se ha anotado anteriormente. Por su puesto, que este mantenimiento conlleva la prohibición de realizar obras, internas o externas, que afecten directamente la estructura, estilo o contemplación de la edificación, o de su entorno, sin previa autorización del órgano competente, sea del Ministerio de Cultura, Juventud y Deportes, así como la prohibición de colocar rótulos o anuncios comerciales o publicitarios, señales o símbolos en las fachadas de las edificaciones incorporadas al régimen de tutela que obstaculicen su contemplación, sin previa autorización de esas autoridades.

El titular o poseedor también está obligado a permitir o facilitar la inspección del inmueble por las autoridades competentes -personal especializado del Ministerio de Cultura, Juventud y Deportes-. Por último, debe hacerse notar, que la utilización de estos bienes, queda subordinada a que no se pongan en peligro los valores que aconsejan su conservación. Es el artículo 9 de la Ley 7555 el que establece las obligaciones que conlleva para los propietarios, poseedores o titulares de derechos reales sobre los bienes la incorporación como patrimonio cultural, a saber:

• a)Conservar, preservar y mantener adecuadamente los bienes.
• b)Informar sobre su estado y utilización al Ministerio de Cultura, Juventud y Deportes, cuando éste lo requiera.
• c)Permitir la colocación de elementos señaladores en la declaratoria del bien.
• e)Permitir las visitas de inspección que periódicamente habrán de realizar funcionarios acreditados del Ministerio, y colaborar con ellos, en la medida de sus posibilidades, para determinar el estado del inmueble y la forma en que están atendiendo su protección y conservación.
• f)Incluir, en el presupuesto ordinario anual, las partidas necesarias para cumplir con las obligaciones prescritas en esta ley, cuando el titular del derecho sea un ente público.
• g)Cumplir con la prohibición de colocar placas y rótulos publicitarios de cualquier índole que, por su dimensión, colocación, contenido del mensaje, dificulten o perturben su contemplación.
• h)Recabar la autorización del Ministerio de Cultura, Juventud y Deportes antes de reparar, construir, restaurar, rehabilitar o ejecutar cualquier otra clase de obras que afecten las edificaciones o su aspecto.
• i)Suspender el trámite de permisos de parcelación, edificaciones o derribo. Si la realización de las obras solicitadas no perjudica el valor histórico ni arquitectónico del bien y si el Ministerio de Cultura, previo informe de la Comisión, así lo comunica a la autoridad que tramita los permisos, estos podrán ser concedidos." Estas obligaciones (cargas o deberes) que se imponen a la propiedad resultarán constitucionales en el tanto cumplan los presupuestos que legitiman las limitaciones a la propiedad privada, explicadas en el Considerando IX.- de esta sentencia. Esto es, en primer lugar, que se establezcan mediante una ley aprobada por mayoría calificada, esto es con el visto bueno de las dos terceras partes de la totalidad de los diputados de la Asamblea Legislativa (treinta y ocho votos), como es el caso de la Ley del Patrimonio Histórico-Arquitectónico -punto que se analizará en detalle más adelante-.

En segundo lugar, las limitaciones que se impongan deben ser generales, es decir, afectar a una generalidad de personas, lo cual implica no solamente su destinatario, sino también el supuesto de hecho de aplicación de la misma. En tercer lugar, tienen que respetar el uso natural del bien inmueble, de manera que se mantenga como identidad productible o valor económico, de modo que el propietario pueda ejercer los atributos esenciales de la propiedad; es decir, que le permitan al propietario explotar normalmente el bien, excluida, claro está, la parte o función afectada por la limitación impuesta por el Estado (sentencias número 979-91, 5893-95, 2345-96, y 4605-96, todas supra citadas). Por ello, es que además de útil, la carga debe ser necesaria, razonable u oportuna, y debe implicar la existencia de una necesidad social imperiosa que la sustente, y por ende, ser de naturaleza excepcional; por lo cual, deben estar llamadas a satisfacer un interés público imperativo.

La razonabilidad de la limitación se traduce en su adecuación al fin y al interés (valor) que la justifica. Corolario de lo anterior, serán inconstitucionales, y por lo tanto indemnizables las cargas o deberes que se imponen para la tutela del patrimonio cultural que afecten los atributos esenciales de la propiedad, y que son aquellos que permiten el uso natural de la cosa dentro de la realidad socio-económica actual, y hacen desaparecer la naturaleza del bien o hacen imposible el uso de la cosa, al impedir el "uso comercial de la propiedad" o su "valor económico y social", porque se constituirían en verdaderas expropiaciones de hecho, violatorias, en consecuencia, del precepto constitucional del artículo 45. Asimismo, serán inconstitucionales las cargas que se impongan que sean de naturaleza singular o concreta, por equipararse a verdaderas expropiaciones. En todo caso, la normativa que tutela el patrimonio cultural debe interpretarse en el sentido más favorable para facilitar y hacer efectiva la conservación de los bienes culturales; sin embargo, ello no obsta a que las cargas sufridas por los titulares por la condición de bien histórica tienen que ser siempre ajustables e idóneas a la relevancia de ese fin público en juego y el respeto de los derechos fundamentales involucrados.

En todo caso, debe tenerse en cuenta que las limitaciones que pesan sobre la propiedad de interés histórico-arquitectónico tienen como misión asegurar la conservación de las mismas, para acrecentar y promover los fines del arte, la historia y cultura nacional; cuyo origen nace de la necesidad de establecer un justo equilibrio social entre los intereses individuales y de la colectividad.

XXXI. DE LA RESPONSABILIDAD DEL ESTADO EN LA TUTELA DEL PATRIMONIO CULTURAL

OBLIGACIÓN DE LA ADMINISTRACIÓN DE PARTICIPAR, FOMENTAR Y COOPERAR EN LA FUNCIÓN TUTELAR DEL PATRIMONIO CULTURAL (RÉGIMEN DE COMPENSACIÓN E INCENTIVOS). Dentro de este régimen especial de tutela, resulta de fundamental importancia el papel que desempeñan las autoridades del Estado, en su condición de garantes de la conservación y enriquecimiento del patrimonio cultural, a fin de facilitar el acceso de todos los ciudadanos a los bienes por él comprendidos. Es así como la acción estatal se justifica en el hecho de que el patrimonio histórico-arquitectónico, al igual que todo tipo de patrimonio cultural, es por su propia naturaleza, dual, es decir, individual y social a la vez. Es así como este derecho fundamental de tercera generación que es, y que se conforma dentro del esquema de un Estado Social de Derecho, implica que su respeto por parte del Estado no se limita a la obligación de no afectar el derecho o de no interferir en la esfera privada del individuo -concepción típica de la orientación liberal-, sino que se traduce en la adopción de acciones y prestaciones concretas por parte de las autoridades públicas.

Frente a esta realidad, la posición del Estado no puede ser -ni ha sido- la indiferencia, toda vez que los poderes públicos deben dar respuesta a las nuevas necesidades mediante expresiones institucionales y administrativas, entre las que obviamente, debe citarse la legislación cultural. Por ello, se constituyen en gestiones obligadas para los poderes públicos el proteger el patrimonio cultural frente a la exportación ilícita y expoliación, así como el facilitar su recuperación cuando hubiesen sido ilegalmente exportados, el promover la difusión para el conocimiento de este tipo de bienes, así como la promoción y fomento de la cooperación e intercambio internacional de la información y de los bienes culturales, técnicos y científicos; y el fomentar la ayuda económica y asesoría para que el particular pueda cumplir con las obligaciones impuestas por la incorporación de su inmueble al régimen de patrimonio cultural.

Asimismo debe impedir toda acción u omisión que ponga en peligro los valores de los bienes que integran el patrimonio, o perturben el cumplimiento de la función social reconocida en este tipo de bienes, lo cual se traduce, en la regulación relativa a la colocación de rótulos comerciales y publicitarios, la adopción de sistemas de seguridad en las instituciones donde se exhiban los bienes culturales (pólizas de seguros), la capacitación del personal, tanto de los museos como de las entidades públicas administrativas encargadas de la tutela de este derecho, el otorgamiento de facilidades económicas, como créditos blandos y exenciones fiscales, por ejemplo. En este orden de ideas, es que resulta importante hacer mención del sistema de incentivos (o compensaciones) dispuesto en la Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, número 7555, de veintisiete de setiembre de mil novecientos noventa y cinco, en que expresamente se establecen una serie de incentivos para los propietarios o poseedores de bienes incorporados al patrimonio cultural (Capítulo III., artículos 13 a 17); como lo son la exención del pago del impuesto sobre los bienes inmuebles y del pago de las construcciones suntuarias, así como de los timbres requeridos para los permisos de construcción (artículo 14); la autorización a las instituciones públicas para efectuar donaciones e inversiones destinadas a obras, adquisiciones por parte del Estado (artículo 15); y establece la obligación para el Ministerio de Cultura, Juventud y Deportes de gestionar líneas de créditos blandas para los particulares o entidades públicas o privadas, con el fin de financiar obras de conservación, restauración, mantenimiento y rehabilitación en bienes declarados de interés histórico arquitectónico (artículo 17).

Al respecto, debe tenerse presente que mediante el inciso k) del artículo 22 de la Ley de Simplificación Tributaria, número 8114, de cuatro de abril del dos mil uno, se derogaron los artículos 13 y 22 de la Ley 7555, que reconocían una exención del impuesto de la renta respecto de "[...] los gastos deducibles para los efectos del impuesto sobre la renta, las donaciones y las inversiones destinadas a los fines de esta ley, así como las mejoras que el propietario, poseedor o titular de derechos reales realice en un inmueble declarado de interés histórico-arquitectónico, siempre que hayan sido autorizadas previamente por el Ministerio de Cultura, Juventud y Deportes"; y "u) las mejoras que realice el propietario, poseedor o titular de derechos reales de un inmueble declarado de interés histórico-arquitectónico, así como los montos de las donaciones o inversiones destinados a los fines de la presente ley, previo informe favorable del Ministerio de Cultura, Juventud y Deportes".

La Sala advierte que aunque con un contenido mínimo, éste régimen de compensación se enmarca en las exigencias establecidas en los Convenios y Recomendaciones internacionales de la materia -reseñadas anteriormente-; sin embargo estima que no son suficientes ni adecuadas para dar una efectiva tutela y protección del patrimonio cultural de la Nación. En otras legislaciones (caso de la francesa o española), las exenciones tributarias son totales, al reconocerse no sólo la del impuesto territorial, sino la relativa a los servicios municipales, y por supuesto, la del impuesto de la renta. La ayuda del Estado también se traduce en la asignación de una serie de recursos importantes para la debida conservación y mantenimiento de estos bienes, tales como lo que respecta al asesoramiento de especialistas, o el efectivo otorgamiento de créditos favorables para llevar a cabo las obras pertinentes. Corresponderá a los legisladores, dotar de los mecanismos e instrumentos necesarios para que éste régimen de compensación e incentivos sea lo suficientemente adecuado para lograr un verdadero equilibrio en relación con las cargas y limitaciones impuestas a los propietarios y poseedores de bienes incorporados al patrimonio histórico-arquitectónico, a quienes se les obliga a disponer de un bien de su propiedad para el provecho de la Nación en su conjunto, de manera que resulta no sólo justo sino necesario que la sociedad (el Estado) les reconozca una serie de beneficios a su favor, en compensación por el "sacrificio" que se les impone; y con ello, se revierta la desprotección en que se mantiene el patrimonio cultural de nuestro país, que produce la demolición, prácticamente instantánea, de las construcciones y edificaciones con se intentan incorporar al patrimonio histórico-arquitectónico, tal y como lo señaló el arquitecto Roberto Villalobos Ardón, en el Seminario Propiedad, Ambiente y Urbanismo, realizado en mil novecientos noventa y cinco:

"Algún colega me decía en algún momento, que no había forma más fácil, más efectiva, más directa, más rápida, más expedita, menos complicada de deshacerse de un edificio viejo, léase patrimonial, que declararlo patrimonio. La imposibilidad del Estado de indemnizar al propietario, lo lleva a un deterioro prácticamente de inmediato, y me he topado con casos en que en término de dos años, algo que más o menos se sostenía, acaba derribado, casa en Curridabat, Escazú, Santo Domingo, etc. ..."

XXXII.Asimismo, resulta obligado para el Estado, la debida planificación en esta materia, sea, el establecimiento de políticas adecuadas de protección, en el Plan Nacional de Desarrollo Urbano, en el que se definan los objetivos y tareas específicas, así como lo relativo a la dotación y previsión de los recursos necesarios para llevar a cabo los mismos. En este sentido, el Ministerio de Cultura, Juventud y Deportes se constituye en el órgano encargado de esta materia, como órgano asesor y responsable, en primer término, de la conservación y del mantenimiento del patrimonio histórico-arquitectónico del país, en los términos previstos en el artículo 3 de la Ley número 7555, y como "la máxima autoridad en la materia" que es, se encuentra obligada a "[...] brindar la asesoría necesaria a los propietarios, poseedores o titulares de derechos reales sobre los bienes que forman ese patrimonio, para que se cumplan los fines de la presente ley."

En todo caso, no debe olvidarse la competencia que tienen los gobiernos locales en lo respecta a la planificación urbana, lo cual, obviamente incluye la protección y tutela del patrimonio cultural, pero ya no como institución responsable, sino como colaborador del Ministerio de Cultura, Juventud y Deportes. En este sentido, cobra sentido lo indicado en sentencias número 55445-99, de las catorce horas treinta minutos del catorce de julio de mil novecientos noventa y nueve, y en la número 2001-05737, de las catorce horas cuarenta y un minutos del veintisiete de junio del dos mil uno, del deber de coordinación que se impone de las municipalidades con las instituciones con competencia asignada a nivel nacional, en este caso, de los gobiernos locales con el Ministerio de Cultura, Juventud y Deportes, el cual tiene asignado un cometido especial en la protección y preservación del patrimonio cultural, a fin de evitar el supuesto conflicto de la prevalencia entre el interés nacional versus el local, es que nace la obligación de coordinación entre las diversas dependencias públicas, a fin de que prevalezca el interés superior de la Nación.

Lo anterior, implica que los gobiernos locales deben de implementar en los planes reguladores las medidas necesarias para coadyuvar en la protección de estos bienes, tal y como sucede en los países europeos -como en el caso de España y Francia-, de modo que hagan efectiva la regulación pertinente en lo que respecta a la colocación de los rótulos y anuncios comerciales, así como lo relativo a la ordenación del tránsito, o al mantenimiento del ornato e higiene en los cantones respectivos, a fin de preservar un medio urbano ecológicamente equilibrado y más sano y participativo, que se traduce en tareas tales como la recolección de basura, el control del tránsito, el ornato y mantenimiento de parques, o el fomento de programas culturales y educativos; todo lo cual, claro están con el asesoramiento del personal responsable del Ministerio de Cultura, Juventud y Deportes.

XXXIII.DEL PRINCIPIO CONSTITUCIONAL DE "LA PUESTA EN VALOR" DEL MONUMENTO, QUE ENMARCA LA PROTECCIÓN DEL PATRIMONIO HISTÓRICO-ARQUITECTÓNICO. Este principio es esencial y propio de la tutela del patrimonio histórico-arquitectónico, que comienza a gestar en la Recomendación de la UNESCO relativa a la protección de las bellezas y del carácter de los lugares y paisajes (1962) y en la Carta Internacional de ICOMOS sobre la conservación y la restauración de monumentos y conjuntos históricos-artísticos (1965), pero cuyo desarrollo como tal se da a partir de las Normas de Quito (en 1967), al atender, precisamente, a las condiciones particulares del continente Latinoamericano, caracterizado por una economía y una cultura subdesarrollada, en virtud de lo cual, se hacía -y hace- necesario y obligatorio enmarcar dentro de esta realidad, cualquier acción de conservación del patrimonio cultural, a fin de que sea consecuente con ella.

Posteriormente se incluye este principio en la Convención de la UNESCO relativa a la salvaguardia de los conjuntos históricos en la vida contemporánea (1976) y en la Carta Internacional de ICOMOS para la protección de las ciudades históricas (1987). Es la respuesta al fenómeno conocido como la "museificación" del patrimonio cultural, por el que se pretende que estos bienes pasen al dominio exclusivo del Estado para su conservación y mantenimiento, lo que generaría su extracción del quehacer diario de la sociedad. Por el contrario, la aplicación de este principio se traduce en que la tutela del patrimonio cultural debe fomentar su debida utilidad económica y social, pero de manera tal que no ponga en riesgo su valor cultural; es decir, se intenta fomentar la utilidad de estas edificaciones, de manera tal que se permita su participación y permanencia en la actividad económica y social de la sociedad, pero al mismo tiempo, manteniéndose y conservándose su valor espiritual (artístico, arquitectónico, histórico, técnico, arqueológico, etc.) que motivó y justifica el régimen tutela especial.

Es así como se sienta el principio de que los monumentos están destinados a cumplir con una función social, sea, la de contribuir a la cultura e identidad nacional; es decir, que se intenta revalorar el patrimonio monumental en función del interés público y para benéfico de la nación, sin que por ello se afecten los derechos de los particulares en ellos involucrados (derecho de propiedad o libertad de comercio, por ejemplo), toda vez que se intenta erigir estas edificaciones como instrumentos del progreso y el desarrollo, en primer lugar, de su titular, y en segundo lugar, como efecto multiplicador del desarrollo económico del país. Con ello, se intenta incorporar a un potencial económico, un valor actual, de poner en productividad una riqueza inexplotada mediante el proceso de revalorización, que lejos de mermar su significación puramente histórica o artística, la acrecienta, pasándola del dominio exclusivo de las minorías eruditas al conocimiento y disfrute de la las (sic) mayorías populares.

Se parte de la base de que los monumentos son parte de los recursos económicos de las naciones, y por supuesto, de sus propietarios o titulares de algún derecho real, motivo por el que se deben movilizar los esfuerzos en el sentido de procurar su mejor aprovechamiento, como medio indirecto para fomentar el desarrollo del país; sea, como elemento facilitador del turismo, del comercio, o inclusive, o para uso habitacional. En muchos países, a través de la aplicación de este principio se han establecido programas de vivienda popular. En todo caso, la utilización que se dé este tipo de edificaciones debe comprender actividades que mantengan el valor cultural del bien, es decir, que no pongan en peligro el bien como tal. La puesta en valor equivale a habitar la edificación en condiciones objetivas y ambientales armónicas que, sin desvirtuar su naturaleza, resalten sus características y permitan su óptimo aprovechamiento; por lo que implica una acción sistemática, eminentemente técnica, dirigida a utilizar todos y cada uno de esos bienes conforme a su naturaleza, destacando y exaltando sus características y méritos, hasta colocarlos en condiciones de cumplir a plenitud, la nueva función a que están destinados; sea, la función social que cumplen, a nivel objetivo urbanístico y a nivel meta-funcional.

De esta suerte, la conservación y el desarrollo no son contradictorios, sino que están íntimamente ligados, y el segundo presupone el primero, en tanto el patrimonio trae grandes beneficios turísticos, o como excelente opción de los programas de vivienda, que permite una significante economía constructiva (de hasta un 35% del valor total de una obra nueva), y produce una mejor distribución del trabajo y del capital, con lo cual, contribuye a la regeneración social y económica de ese sector. Asimismo, la puesta en valor ejerce una beneficiosa acción refleja sobre el perímetro urbano, toda vez que la diversidad de los monumentos y edificaciones de marcado interés cultural, histórico, artístico y arquitectónico ubicados en las ciudades forman parte del paisaje urbano, es decir, del ambiente -según la acepción integral explicada anteriormente-, de manera que ejercen un efecto multiplicador sobre el resto del área que se revaloriza en su conjunto y como consecuencia del plan de valorización y saneamiento urbano (planificación urbana).

Se aclara, que este principio no es exclusivo de los conjuntos históricos, sino de todo el patrimonio histórico-arquitectónico; sin embargo, como ejemplo de su aplicación, es más claro en el éstos (sic), como por ejemplo la ciudad de la Habana Colonial, o San Juan Viejo, en Puerto Rico, o Antigua Guatemala, lugares donde se ha fomentado la actividad económica y social cotidiana de un centro urbano, donde se realizan actividades comerciales, artesanales, turísticas, también habitacionales; con la única diferencia de que edificaciones que conforman estos centros están sujetas a un régimen especial, por el que se impide su demolición, destrucción total o parcial, y se obliga a sus titulares a su conservación y mantenimiento, así como el sometimiento a las regulaciones de ordenación del tránsito -que son mucho más estrictas y controladas y del ornato, entre las que se incluye las relativas a la colocación de rótulos y anuncios publicitarios” (el destacado no es del original).

De manera más reciente, en la resolución nro. 2017016787 de las 9:20 horas del 20 de octubre de 2017, este Tribunal resolvió:

“VII.- Sobre la tutela del patrimonio cultural. Según ha señalado este Tribunal, los bienes culturales son producto y testimonio de las diferentes tradiciones y realizaciones espirituales de lo pasado, y constituyen un elemento fundamental de la personalidad de los pueblos, por lo que es indispensable conservarlos. Esa es una tarea fundamental del Estado, que deviene de los artículos 50 y 89 de la Constitución Política y de otros instrumentos internacionales. En un inicio, dicha tutela se circunscribía a un concepto de patrimonio materializado en algún bien. La Sala, en la sentencia No. 1997-4350 de las 14:54 horas del 24 de julio de 1997, señaló lo siguiente:

“La noción de "patrimonio", cierta­mente (sic), comprende cualesquiera bienes que tengan un valor en dinero, como lo señala el Código Civil, patrimonio es el total conjunto de los bienes y derechos de una persona o, también, que todos los bienes que constituyen el patrimonio de una persona, responden al pago de sus deudas. Es obvio, que los bienes arqueológicos o culturales también tienen valor apreciable en dinero, ya sea por el material de que están hechos, por su fina artesanía o belleza o por el testimonio histórico que evidencian, ya sean de barro, piedra o metal. Algunos de esos objetos pueden ser de escaso valor físico o de poca signifi­cación (sic) como obra artística, pero aun así son valiosos por su origen y como elementos de estudio para investigar la cultura de los pueblos de otras épocas, de sus creencias y costumbres o de la naturaleza del medio en que vivieron, según sean las huellas o representaciones que allí logren encon­trarse.

Pero, esos bienes, antes y ahora, constituyen un patrimo­nio común que las generaciones pasadas legaron a las presentes y a éstas corresponde hacerlo para las futuras como muestra de conocimiento de los hechos humanos que identifican o caracterizan un pasado nuestro. Por todo eso, valen los objetos arqueológicos provenientes de las razas aborígenes que poblaron el continente en la época pre-colombina (sic), anterior o contemporánea al estableci­miento de la cultura hispánica y por ese valor es que muchas personas buscan y adquieren esas piezas.” Sin embargo, desde ese momento se apreciaba otro elemento importante de tutelar proveniente: los conocimientos y las técnicas utilizados para construir o elaborar dicho patrimonio material:

“Por eso mismo, el interés individual que cada uno pueda tener en la posesión o propiedad de esos objetos, no está sobre el interés público, tanto por su valor histórico, como porque, dentro de la cultura de los pueblos, está el estudio de lo que hicieron los grupos humanos que habitaron el mismo territorio, estudio que se facilita haciendo posible que el mayor número de personas tenga acceso a esas fuentes de conocimiento y nada más consecuente con ese interés público, que los bienes arqueológicos permanezcan en territorio nacional, en poder de los museos y bajo la perte­nencia del Estado o de sus instituciones. Debe entonces subra­yarse, que lo más importante no es el valor material de los referidos objetos, sino, su valor histórico, científico y cultural.” (sentencia No. 1997-4350) Así, al resaltar la importancia histórica que revisten tales representaciones, se hizo alusión, por ejemplo, a los testimonios que formaban parte de ese legado cultural como integrante de la identidad cultural de la sociedad:

“Arqueología e Historia son dos ciencias vinculadas íntimamente, teniendo como uno de sus objetivos aclarar y reconstruir los acontecimientos del pasado. La reconstrucción histórica se basa, fundamentalmente en la interpretación de documentos escritos, mientras que la Arqueología basa sus estudios en los datos que obtiene a través de los objetos materiales dejados por la acción del hombre en las sociedades ya desaparecidas, por medio de su relación entre ellos, de la forma del hallazgo y de su conexión con el ambiente. Todo objeto conservado, todo vestigio de vida y actividad del hombre de las sociedades del pasado, representa un testimonio que hace posible el conoci­miento total o parcial, según sea el caso, de esos testimonios, y, por ende, de formas de vida ya inexistentes y desconocidas en el presente, pero cuyo conocimiento es de singular importancia, pues forman parte de la identidad cultural de la sociedad en que se vive; desde luego, en la medida en que sean un testimonio importante para la recons­trucción y conocimiento de los hechos del pasado.

El Patrimonio Arqueológico Nacional consiste básicamente en los inmuebles y muebles, producto de las culturas indígenas anteriores o contem­poráneas al establecimiento de la cultura prehispánica en el territorio nacional, así como los restos humanos, flora y fauna, relacionados con estas culturas. De lo anterior resulta el interés en la protección y conservación de esos hallazgos." (sentencias No. 1995-2706 y 1996- 0729).

Enfatizó la Sala, que el interés de resguardar este patrimonio, obedecía a un querer mayoritario orientado a la obtención de los valores pretendidos; esto es, de la mayoría de los intereses individuales coinciden­tes. Se describió como un interés, porque se orienta al logro de un valor, provecho o utilidad resultante de aquello sobre lo que recae tal coincidencia mayoritaria. Además, tiene una connotación de interés público, toda vez que se asigna a toda la comunidad, como resultado de esa mayoría coincidente, porque es o pertene­ce al pueblo, a una comunidad en general. De manera que no es exclusivo o propio de unas pocas personas, sino en cuanto participan o coinciden en el mismo un número tal de personas, componentes de una comunidad determinada, que puede llegar a identificársela como referentes de todo el grupo, inclusive, respecto de aquellos que, individualmente, puedan o no compartirlo.

Se consideró el patrimonio, desde entonces, como compuesto por valores de carácter histórico y cultural, portadores de un mensaje, que contribuyen a identifi­car (sic) un momento histórico determinado, testimonio real y tangible de la evolución y transformación experimentada por la sociedad y su medio natural a través del tiempo, que constituyen antes, hoy y para el futuro, patrimonio común como expresión de la mayoría de los intereses individuales coinciden­tes (sic), es decir, de un interés público. Sin embargo, su concepción siguió atada a un concepto material. Tradicionalmente se consideraban “patrimonio cultural”: los monumentos, obras arquitectónicas, esculturas o pinturas monumentales; inscripciones, cavernas y grupos de elementos de carácter arqueológico, que tuviesen un valor universal excepcional desde el punto de vista de la historia, del arte o de la ciencia, así como los lugares construidos por la naturaleza. Esta concepción tradicional provenía también de la Convención sobre la Protección del Patrimonio Mundial, Cultural y Natural, que lo definía así:

“Articulo 1 A los efectos de la presente Convención se considerará "patrimonio cultural":

- los monumentos: obras arquitectónicas, de escultura o de pintura monumentales, elementos o estructuras de carácter arqueológico, inscripciones, cavernas y grupos de elementos, que tengan un valor universal excepcional desde el punto de vista de la historia, del arte o de la ciencia, - los conjuntos: grupos de construcciones, aisladas o reunidas, cuya arquitectura, unidad e integración en el paisaje les dé un valor universal excepcional desde el punto de vista de la historia, del arte o de la ciencia, - los lugares: obras del hombre u obras conjuntas del hombre y la naturaleza así como las zonas, incluidos los lugares arqueológicos que tengan un valor universal excepcional desde el punto de vista histórico, estético, etnológico o antropológico.” Actualmente, el concepto de patrimonio cultural ha sido ampliado por la Convención para la Salvaguardia del Patrimonio Inmaterial en el año 2003:

“Artículo 2: Definiciones A los efectos de la presente Convención, 1. Se entiende por “patrimonio cultural inmaterial” los usos, representaciones, expresiones, conocimientos y técnicas -junto con los instrumentos, objetos, artefactos y espacios culturales que les son inherentes- que las comunidades, los grupos y en algunos casos los individuos reconozcan como parte integrante de su patrimonio cultural. Este patrimonio cultural inmaterial, que se transmite de generación en generación, es recreado constantemente por las comunidades y grupos en función de su entorno, su interacción con la naturaleza y su historia, infundiéndoles un sentimiento de identidad y continuidad y contribuyendo así a promover el respeto de la diversidad cultural y la creatividad humana. A los efectos de la presente Convención, se tendrá en cuenta únicamente el patrimonio cultural inmaterial que sea compatible con los instrumentos internacionales de derechos humanos existentes y con los imperativos de respeto mutuo entre comunidades, grupos e individuos y de desarrollo sostenible.

2. El “patrimonio cultural inmaterial”, según se define en el párrafo 1 supra, se manifiesta en particular en los ámbitos siguientes:

• a)tradiciones y expresiones orales, incluido el idioma como vehículo del patrimonio cultural inmaterial; b) artes del espectáculo; c) usos sociales, rituales y actos festivos; d) conocimientos y usos relacionados con la naturaleza y el universo; e) técnicas artesanales tradicionales.” Esta Convención fue aprobada en nuestro país mediante Ley No. 8560 del 16 de noviembre de 2006 y publicada en el Diario La Gaceta No. 237 del 11 de diciembre de 2006. Con la incursión del concepto de patrimonio cultural inmaterial, se abrieron nuevos espectros de tutela que resguarda nuestra Constitución Política en el numeral 89, en relación con lo dispuesto en el artículo 7. De ahí la importancia de resguardar dicho patrimonio frente al hurto, saqueo, transporte, tráfico y/o comercialización ilícita que están sufriendo algunos países, entre ellos Costa Rica y Ecuador. De hecho, nuestro país ya aprobó otro convenio en similar sentido con Perú, denominado “Convenio sobre protección y restitución de bienes culturales entre la República del Perú y la República de Costa Rica”, el cual fue analizado por este Tribunal en la sentencia No. 2015-7175 de las 14:30 horas del 19 de mayo de 2015, según se indica a continuación:

“IV.- Sobre el Proyecto de ley sometido a consulta. Según la exposición de motivos del expediente legislativo en estudio, este proyecto de ley tiene como fin, no solo estrechar los lazos culturales existentes con las Partes Contratantes, sino también, abordar la problemática que se presenta en ambos país (sic) con relación al robo y exportación ilícita de objetos propios del patrimonio cultural. Esta iniciativa se inspira en los principios jurídicos multilaterales que al respecto han adoptado ambos Estados en la Convención de la UNESCO de 1970, sobre las medidas a Adoptarse para Prohibir e Impedir la Importación, Exportación y Transferencias Ilícitas de Bienes Culturales, la Convención de la UNESCO sobre la Protección del Patrimonio Mundial, Cultural y Natural de 1972, y la Convención de San Salvador sobre Defensa del Patrimonio Arqueológico, Histórico y Artístico de las Naciones Americanas de 1976.

En virtud de lo anterior, el Convenio establece normas que prohíben el ingreso en sus respectivos territorios de bienes culturales provenientes de la otra Parte que hayan sido objeto de apropiación o exportación ilícita (artículo 1). Para ello, se define en el numeral 2 del Convenio lo que deberá comprenderse por ambos Estados como bienes culturales. Asimismo, se dispone el intercambio de información para dar aviso e identificar estos bienes cuando se tenga sospecha de su sustracción ilegítima (artículo 4), se facultan medidas que permiten la recuperación de dichos bienes (artículo 3), a efectos de lograr su protección y conservación; y finalmente, facilita la devolución de estos bienes, liberándolos del pago de derechos aduaneros y demás impuestos correspondientes. Tales objetivos son consecuentes con los compromisos internacionales adquiridos previamente por nuestro país y por lo dispuesto en el numeral 89 de la Constitución Política, respecto al cual este Tribunal se ha pronunciado en el siguiente sentido:

“SEGUNDO: DEL PATRIMONIO ARQUEOLOGICO O PATRIMONIO CULTURAL. Los bienes culturales, son producto y testimonio de las diferentes tradiciones y realizaciones espirituales de lo pasado y constituye el elemento fundamental de la personalidad de los pueblos, por lo que es indispensable conservarlos y esta es una tarea fundamental del Estado. Lo anterior hace que el patrimonio histórico y artístico sea diferente al de los bienes patrimoniales de carácter económico, porque no se trata de bienes de producción, sino, del patrimonio arqueológico cuyo régimen jurídico obedece a otro orden de ideas y propósitos y a una diferente categoría de valores que, por lo tanto, no pueden examinarse con un criterio de política económica, porque no le es aplicable ninguna doctrina de ese género. La noción de "patrimonio", cierta¬mente (sic), comprende cualesquiera bienes que tengan un valor en dinero, como lo señala el Código Civil, patrimonio es el total conjunto de los bienes y derechos de una persona o, también, que todos los bienes que constituyen el patrimonio de una persona, responden al pago de sus deudas.

Es obvio, que los bienes arqueológicos o culturales también tienen valor apreciable en dinero, ya sea por el material de que están hechos, por su fina artesanía o belleza o por el testimonio histórico que evidencian, ya sean de barro, piedra o metal. Algunos de esos objetos pueden ser de escaso valor físico o de poca signifi¬cación (sic) como obra artística, pero aun así son valiosos por su origen y como elementos de estudio para investigar la cultura de los pueblos de otras épocas, de sus creencias y costumbres o de la naturaleza del medio en que vivieron, según sean las huellas o representaciones que allí logren encon¬trarse (sic). Pero, esos bienes, antes y ahora, constituyen un patrimo-nio (sic) común que las generaciones pasadas legaron a las presentes y a éstas corresponde hacerlo para las futuras como muestra de conocimiento de los hechos humanos que identifican o caracterizan un pasado nuestro.

Por todo eso, valen los objetos arqueológicos provenientes de las razas aborígenes que poblaron el continente en la época pre-colombina (sic), anterior o contemporánea al estableci¬miento (sic) de la cultura hispánica y por ese valor es que muchas personas buscan y adquieren esas piezas. Por eso mismo, el interés individual que cada uno pueda tener en la posesión o propiedad de esos objetos, no está sobre el interés público, tanto por su valor histórico, como porque, dentro de la cultura de los pueblos, está el estudio de lo que hicieron los grupos humanos que habitaron el mismo territorio, estudio que se facilita haciendo posible que el mayor número de personas tenga acceso a esas fuentes de conocimiento y nada más consecuente con ese interés público, que los bienes arqueológicos permanezcan en territorio nacional, en poder de los museos y bajo la perte¬nencia (sic) del Estado o de sus instituciones.

Debe entonces subra¬yarse (sic), que lo más importante no es el valor material de los referidos objetos, sino, su valor histórico, científico y cultural. Ese interés, no es más que un querer mayoritario orientado a la obtención de los valores pretendidos; esto es, de la mayoría de los intereses individuales coinciden¬tes (sic). Es interés, porque se orienta al logro de un valor, provecho o utilidad resultante de aquello sobre lo que recae tal coincidencia mayoritaria. Es público, porque se asigna a toda la comunidad, como resultado de esa mayoría coincidente, porque es o pertene¬ce (sic) al pueblo, a la comunidad en general. De modo que, es interés público, porque no es exclusivo o propio de unas pocas personas, sino en cuanto participan o coinciden en el mismo un número tal de personas, componentes de una comunidad determinada, que puede llegar a identificársela como de todo el grupo, inclusive, respecto de aquellos que, individualmente, puedan o no compartirlo.

Es decir, los valores de carácter histórico y cultural, como portadores de un mensaje, contribuyen a identifi¬car (sic) un momento histórico determinado, testimonio real y tangible de la evolución y transformación experimentada por la sociedad y su medio natural a través del tiempo, que constituyen antes, hoy y para el futuro, patrimonio común como expresión de la mayoría de los intereses individuales coinciden¬tes (sic), es decir, de un interés público.” (sentencia No. 1997-4350) En consecuencia, lejos de constitutir (sic) la aprobación de este Convenio una lesión al Derecho de la Constitución, fortalece nuestra garantía constitucional de protección del patrimonio cultural, y promueve la respectiva cooperación internacional para ambos Estados Parte en tal propósito…

V.En conclusión y bajo los términos señalados, la Sala no encuentra objeciones de índole constitucional, de fondo o forma, al proyecto de ley tramitado en el expediente legislativo 18.138.”

Dicho precedente se refiere a un articulado jurídico positivo muy similar al convenio objeto de estudio”.

A nivel legal, la ley nro. 7555 del 4 de octubre de 1995 ‘Patrimonio Histórico‑Arquitectónico de Costa Rica’ indica:

“ARTÍCULO 2.- Patrimonio histórico-arquitectónico Forma parte del patrimonio histórico-arquitectónico del país, el inmueble de propiedad pública o privada con significación cultural o histórica, declarado así por el Ministerio de Cultura, Juventud y Deportes de conformidad con la presente ley.

Se declaran de interés público la investigación, la conservación, la restauración, la rehabilitación y el mantenimiento del patrimonio histórico-arquitectónico.

ARTÍCULO 3.- Asesoría El Estado tiene el deber de conservar el patrimonio histórico-arquitectónico del país. El Ministerio de Cultura, Juventud y Deportes es la máxima autoridad en la materia y brindará la asesoría necesaria a los propietarios, poseedores o titulares de derechos reales sobre los bienes que forman ese patrimonio, para que se cumplan los fines de la presente ley (…)

ARTÍCULO 5.- Comisión nacional de patrimonio histórico-arquitectónico Créase la Comisión nacional de patrimonio histórico-arquitectónico que asesorará al Ministerio en el cumplimiento de esta ley. Estará integrada de la siguiente manera:

• a)El Ministro de Cultura, Juventud y Deportes o su representante, quien la preside.
• b)El funcionario de más alto rango en el Centro de Investigación y Conservación de Patrimonio Cultural.
• c)Un representante del Colegio de Arquitectos, nombrado por su Junta Directiva.
• d)El Presidente de la Academia de Geografía e Historia.
• e)El Presidente de la Asociación costarricense del Consejo Internacional de Monumentos y Sitios.
• f)Un representante de la Procuraduría General de la República.
• g)Un representante de la Defensoría de los Habitantes, con voz pero sin voto.

La obligación de los dos últimos será velar por los intereses de los particulares afectados por la aplicación de la presente ley. Los miembros de la Comisión citados en los incisos a), b), d) y e) ejercerán sus funciones mientras desempeñen el cargo que los llevó a ella; los citados en los incisos c), f) y g) serán nombrados por cuatro años. En caso de renuncia o muerte, el sustituto será nombrado por período completo (…)

ARTÍCULO 8.- Decreto Ejecutivo El Decreto Ejecutivo que incorpore al patrimonio histórico-arquitectónico un bien determinado, comprenderá los siguientes extremos:

• a)Los datos de inscripción del inmueble en el Registro de la Propiedad y la descripción clara y precisa de las edificaciones que contiene, en particular las que hayan dado lugar a la declaratoria.
• b)Un análisis detallado y fundamentado de las razones históricas o arquitectónicas que sustentan la declaratoria.
• c)Recomendación para iniciar los trámites de expropiación de inmuebles conforme a la ley respectiva, cuando para la protección material o para el mejor aprovechamiento cultural o visual del bien se requiera la afectación de otros inmuebles colindantes o vecinos (…)” (la negrita fue incorporada).

Asimismo, el ordinal 35 de la Ley Orgánica del Ambiente estatuye: “La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos: (…) f) Proteger los entornos naturales y paisajísticos de los sitios y centros históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico, de importancia para la cultura y la identidad nacional”. Esto implica que el manejo de los recursos culturales permite la intervención humana para el mantenimiento, guarda, preservación y bienes ubicados en su entorno, así como las acciones desplegadas para favorecer su rescate y preservación. A su vez, los numerales 71 y 72 eiusdem preceptúan:

“Artículo 71.- Contaminación visual. Se considerarán contaminación visual, las acciones, obras o instalaciones que sobrepasen, en perjuicio temporal o permanente del paisaje, los límites máximos admisibles por las normas técnicas establecidas o que se emitan en el futuro.

El Poder Ejecutivo dictará las medidas adecuadas y promoverá su ejecución mediante los organismos, los entes públicos y las municipalidades, para prevenir este tipo de contaminación.

Artículo 72.- Conservación del paisaje. La autoridad competente promoverá que los sectores públicos y privados participen en la conservación del paisaje. Cuando para realizar una obra se necesite afectarlo, el paisaje resultante deberá ser, por lo menos, de calidad igual que el anterior”.

Por consiguiente, en relación con el patrimonio cultural, no solo se persiguen fines de conservación, preservación y desarrollo, sino que, tal como se consignó en el pronunciamiento nro. 2010013099 de las 14:56 horas del 4 de agosto de 2010, “también el principio de sostenibilidad en el aprovechamiento y desarrollo de los bienes del patrimonio artístico, arqueológico y cultural, para enriquecer su entorno mejorando su belleza escénica, y dar acceso y seguridad a los bienes y personas, según aconsejen las normas técnicas y científicas en las respectivas materias”.

De esta forma, en consonancia con la jurisprudencia constitucional, la protección del patrimonio cultural se impone como obligación constitucional a partir de los artículos 50 y 89 de la Carta Magna, sin perjuicio del ordenamiento jurídico nacional e internacional que rige la materia. Ahora, la preservación del patrimonio cultural que, además, se encuentra en un área silvestre protegida, implica que, antes de la adopción de cualquier decisión legislativa que lo afecte tanto a él como a su entorno, debe contarse con estudios técnicos que respalden su preservación. Lo anterior es imprescindible a los efectos de que se estudie la interacción entre el patrimonio cultural, el ambiente y el ser humano, así como que se determine si es posible lograr un adecuado equilibrio entre tales elementos.

III.Sobre la alegada inconstitucionalidad de la ley nro. 9892 del 24 de agosto de 2020 por cambiarle sin estudios científicos previos la categoría de manejo a una superficie territorial del área silvestre protegida ‘Isla San Lucas’.

Previo a resolver lo que en derecho corresponde, cabe resaltar que, por medio de la ley nro. 5469 del 25 de abril de 1974, la isla San Lucas fue trasladada a la Municipalidad de Puntarenas con el propósito de destinarla para centro turístico. Posteriormente, mediante la ley nro. 6043 del 2 de marzo de 1977, denominada ‘Ley sobre la Zona Marítimo Terrestre’, se reguló que la referida isla “conservará su situación jurídica actual bajo la administración de la Municipalidad de Puntarenas”. De otro lado, por medio del decreto ejecutivo nro. 24520 del 27 de julio de 1995 se declaró de interés histórico arquitectónico las edificaciones del Presidio de San Lucas. Por su parte, mediante el decreto ejecutivo nro. 29277-MINAE del 11 de enero de 2001 se creó el Refugio Nacional de Vida Silvestre Isla San Lucas.

Luego, a través del decreto ejecutivo nro. 30714-C del 26 de setiembre de 2002, las edificaciones en esa isla fueron incorporadas al patrimonio histórico arquitectónico de Costa Rica, al considerar: “1º-Que en la Isla de San Lucas se registra evidencia de la ocupación prehispánica del período Sapoa-Ometepe (800-1500 d. C) y edificaciones que testimonian su uso como centro penal de la década de los años 1930, lo cual le confiere la denominación de Sitio Histórico Isla de San Lucas. 2º-Que los sitios arqueológicos ubicados en la Isla, reflejan el conocimiento de la navegación, extracción y uso de recursos ligados a ambientes marinos y costeros. 3º-Que existen pocos sitios arqueológicos en las islas del Golfo de Nicoya, y al ser éstos no renovables y finitos, deben ser protegidos. 4º-Que el antiguo penal es un conjunto arquitectónico caracterizado por una estructura física, reconocible como representativa de la realidad histórica social de los años 1930 1940. 5º-Que en el conjunto arquitectónico de la Isla se empleó la técnica del concreto armado y la influencia racionalista en un ámbito cultural de marcada influencia históricista (sic). 6º-Que es deber del Estado salvaguardar el Patrimonio Cultural del país”.

Ahora, la ley nro. 9892, cuestionada en el sub iudice, estatuye:

“ARTÍCULO 1-Creación. Se crea el Parque Nacional Isla San Lucas, que además de su condición de área silvestre protegida, será patrimonio histórico - arquitectónico y zona de aprovechamiento turístico sostenible, en las áreas específicas que se determinan en la presente ley (…)”.

Visto lo anterior, cabe reiterar lo indicado ut supra en relación con las áreas silvestres protegidas, las cuales configuran espacios geográficos delimitados, constituidos por terrenos, humedales y porciones de mar, que representan un significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades, y por su significado histórico y cultural. Tales áreas silvestres protegidas están dedicadas a la conservación y protección de la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general.

En adición, recuérdese que el sistema de áreas protegidas está compuesto por diversas categorías de manejo o gestión. Ciertamente, estas persiguen fines comunes, como lo previstos en el ordinal 35 de la Ley Orgánica del Ambiente; empero, también tienen características de relevancia distintiva. Sobre este tema, en el supracitado dictamen nro. C-016-2002 del 15 de enero de 2002, la PGR explicó: “(…) aún (sic) y cuando no existe en nuestra legislación vigente una definición técnica de zona protectora, la sola clasificación que el artículo 32 de la Ley No. 7554 hace de las categorías de manejo, lleva a pensar necesariamente que sí existen diferencias entre ellas, ya que, de lo contrario, habría bastado con enunciar un régimen único de áreas silvestres protegidas. Y es lógico que así sea, toda vez que cada área silvestre tiene sus propias características desde el punto de vista biológico, edáfico, hidrológico, etc., que la hacen merecedora de un régimen particular de tratamiento definido por la categoría de manejo asignada” (el resaltado fue suplido).

De este modo, es evidente que a la par de que las áreas silvestres protegidas disfruten de un resguardo particular “por representar significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural” (artículo 58 de la Ley de Biodiversidad), cada una de las diferentes categorías de manejo tiene sus cualidades distintivas, lo que inexorablemente impone la exigencia de contar con estudios científicos a los efectos de sustentar la decisión de qué tipo de categoría de manejo es la más apropiada para cada área, tal como dispone la norma antedicha: “Durante el proceso de cumplimiento de requisitos para establecer áreas silvestres protegidas estatales, los informes técnicos respectivos deberán incluir las recomendaciones y justificaciones pertinentes para determinar la categoría de manejo más apropiada a que el área propuesta debe someterse” (la negrita fue agregada).

En ese sentido, la UICN fue enfática al señalarle a este Tribunal que: “L (sic) asignación de la categoría de manejo de un área silvestre protegida debe ser producto de un análisis que considere los objetivos de creación del área, los valores naturales, culturales y otros del área, la condición actual de estos valores, los usos que se podrían contemplar, entre otros. Dicha valoración debe llevarse a cabo en conjunto con los grupos de interés, autoridades y comunidades locales”.

En el sub examine, con la ley nro. 9892, una porción de la isla San Lucas pasó de ‘refugio nacional de vida silvestre’ ‑según lo definido en el decreto ejecutivo nro. 29277-MINAE del 11 de enero de 2001‑ a ‘parque nacional’. Adviértase que, de acuerdo con el numeral 32 de la Ley Orgánica del Ambiente, tanto ‘refugio nacional de vida silvestre’ como ‘parque nacional’ representan diversas categorías de manejo con relación a un tipo más general de zona geográfica denominada ‘área silvestre protegida’, de manera que, justamente, por tratarse de categorías de manejo distintas, sus correspondientes terrenos demandan necesidades regulatorias diferenciadas. Es decir, el área silvestre protegida se subdivide en varias categorías de manejo, cada una de la cuales cuenta con zonas geográficas específicas, cuyas cualidades particulares precisamente justifican y obligan a las diversas medidas necesarias y amoldadas a tales características con el propósito de salvaguardar al ambiente de forma eficaz y eficiente.

Tal categorización y, por supuesto, su eventual alteración no son arbitrarias ni responden a ocurrencias, sino que se basan en estudios científicos previos debidamente sustentados, lo que está en consonancia con los numerales 38 de la Ley Orgánica del Ambiente, 58 y 59 de la Ley de Biodiversidad, 71 y 72 del reglamento a este último cuerpo normativo, 2 de la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’, 10 y 14 del ‘Convenio sobre Diversidad Biológica y sus Anexos’, así como con los principios de progresividad y de no regresión en materia ambiental, los principios precautorio, preventivo y de objetivación de la tutela ambiental, así como el principio lógico‑jurídico de no contradicción.

En el sentido expuesto, la ley nro. 7317 del 30 de octubre de 1992, denominada ‘Ley de Conservación de la Vida Silvestre’, regula los refugios nacionales de vida silvestre de esta forma:

“Artículo 82.- Son refugios nacionales de vida silvestre los que el Poder Ejecutivo declare o haya declarado como tales, para la conservación, el manejo y la protección de la vida silvestre, en especial de las que se encuentren en vías de extinción. Para efecto de clasificarlos existen tres clases de refugios nacionales de vida silvestre:

• a)Refugios de propiedad estatal.
• b)Refugios de propiedad mixta.
• c)Refugios de propiedad privada.

Los recursos naturales comprendidos dentro de los refugios nacionales de vida silvestre, quedan bajo la competencia y el manejo exclusivo del Sistema Nacional de Áreas de Conservación () del Ministerio de Ambiente y Energía (*), según se determina en la presente Ley y en su Reglamento (…)

Las personas físicas o jurídicas que deseen realizar actividades o proyectos de desarrollo y de explotación de los recursos naturales, comprendidos en los refugios de tipo b y c, requerirán de la autorización del Sistema Nacional de Áreas de Conservación (*). Dicha autorización deberá otorgarse con criterios de conservación y de estricta "sostenibilidad" en la protección de los recursos naturales y se analizará mediante la presentación de una evaluación de impacto de la acción por desarrollar, siguiendo la metodología técnico científica que se aplica al respecto. Esta evaluación será costeada por el interesado y será elaborada por profesionales competentes en el campo de los recursos naturales (…)

En los refugios de propiedad estatal y mixtos solamente se permitirá realizar actividades definidas en el plan de manejo elaborado para el área protegida, previa presentación de las evaluaciones de impacto ambiental correspondientes (…)

Artículo 83.-Se prohíbe la extracción de vida silvestre (*), continentales e insulares, en los refugios nacionales de vida silvestre, con excepción del manejo y la extracción para viveros o zoocriaderos, previa realización de los correspondientes estudios científico técnicos.

El Sistema Nacional de Áreas de Conservación (*) tendrá las facultades y deberes que establece la Ley No. 6043, respecto de los Refugios Nacionales de Vida Silvestre que incluyen áreas de la zona marítimo terrestre (…)” (el énfasis fue agregado).

A su vez, en el Reglamento a la Ley de Biodiversidad, tal categoría de manejo de área silvestre protegida es definida así:

“e) Refugios Nacionales de Vida Silvestre: Áreas geográficas que poseen ecosistemas terrestres, marinos, marino-costeros, de agua dulce o una combinación de estos. Sus fines principales serán la conservación, la investigación, el incremento y el manejo de la flora y la fauna silvestres, en especial de las que se encuentren en vías de extinción. Para efectos de clasificarlos, existen tres clases de refugios nacionales de vida silvestre:

e.1) Refugios de propiedad estatal. Son aquellos en los que las áreas declaradas como tales pertenecen en su totalidad al Estado y son de dominio público. Su administración corresponderá en forma exclusiva al SINAC. Sus principales objetivos son: la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentren declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. Por tratarse del patrimonio natural del Estado, únicamente podrán desarrollarse labores de investigación, capacitación y ecoturismo.

e.2) Refugios de propiedad privada. Son aquellos en los cuales las áreas declaradas como tales pertenecen en su totalidad a particulares. Su administración corresponderá a los propietarios de los inmuebles y será supervisada por el SINAC. Sus principales objetivos son: la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentran declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. En los terrenos de los refugios de propiedad privada, sólo (sic) podrán desarrollarse actividades productivas de conformidad con lo que estipula el Reglamento de la Ley de Conservación de la Vida Silvestre, Decreto Ejecutivo Nº 32633-MINAE, del 10 de marzo del 2005, publicado en La Gaceta Nº 180 del 20 de setiembre del 2005.

e.3) Refugios de propiedad mixta. Son aquellos en los cuales las áreas declaradas como tales pertenecen en parte al Estado y en parte a particulares. Sus principales objetivos son: la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentran declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. Su administración será compartida entre los propietarios particulares y el SINAC, de manera que en los terrenos que sean propiedad del Estado sólo (sic) podrán desarrollarse las actividades indicadas previamente para los refugios de propiedad estatal, indicadas en el inciso i) mientras que en los terrenos de propiedad privada podrán desarrollarse las actividades señaladas para los refugios de propiedad privada indicadas en el inciso ii), respetando los criterios y requisitos respectivos.

En cuanto a las dimensiones y características permitidas para los diferentes tipos de actividades y proyectos a desarrollar dentro de los refugios de propiedad privada y en la porción privada de los refugios de propiedad mixta, refiérase al Reglamento de la Ley de Conservación de la Vida Silvestre”.

Por su parte, en la sentencia nro. 1999002988 de las 11:57 horas del 23 de abril de 1999, este Tribunal Constitucional señaló respecto de los refugios nacionales de vida silvestre lo siguiente:

“Dichos sitios tienen como fin primordial la protección de las especies de flora y fauna en extinción y que poseen entre otros valores, un gran valor científico, de ahí el interés de conservarlos. Con su conservación se pretende garantizar la perpetuidad de las especies de vida silvestre, sus poblaciones y hábitats, y dar oportunidad para realizar actividades de tipo científico, educativo y recreativo, cuando no vayan en detrimento de los objetivos de cada refugio. Dentro de los Refugios Nacionales de Vida Silvestre, la biota puede ser muy variada dependiendo de la diversidad de asociaciones naturales existentes dentro del refugio, según la variedad de condiciones geográficas locales, lo que significa apreciar las diferencias que provienen de una diversidad en condiciones geológicas, edáficas, topográficas y de actividad animal y humana, de ahí que se haga necesario la protección legal de estas áreas y de las demás constituyentes de la propiedad agraria forestal” (el destacado fue añadido).

Aunado a lo anterior, el Sistema Nacional de Áreas de Conservación ha clarificado que el refugio nacional de vida silvestre equivale a la categoría IV de conservación establecida por la UICN, a saber, al área de manejo de hábitat/especies, cuyo fin principal es la protección de hábitats o especies concretas, por lo que pretende el mantenimiento, la conservación y la restauración de estos. Este tipo de categoría de manejo generalmente se emplea en zonas geográficas que han sufrido modificaciones importantes y que, por ende, necesitan de protección, la cual puede darse con o sin intervención humana. Además, se ha señalado que en la categoría aludida es posible que se den usos humanos, como la investigación científica; empero, esto no puede constituir su fin principal, por cuanto las medidas adoptadas deben tender primordialmente a la protección de los hábitats y las especies.

Por otro lado, según el numeral 1º de la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ por parque nacional se debe entender: “Las regiones establecidas para la protección y conservación de las bellezas escénicas naturales y de la flora y la fauna de importancia nacional, de las que el público pueda disfrutar mejor al ser puestas bajo la vigilancia oficial (…)”. Asimismo, prevé que:

“ARTÍCULO 3 Los Gobiernos Contratantes convienen en que los límites de los parques nacionales no serán alterados ni enajenada parte alguna de ellos sino por acción de la autoridad legislativa competente. Las riquezas existentes en ellos no se explotarán con fines comerciales.

Los Gobiernos Contratantes convienen en prohibir la caza, la matanza y la captura de especímenes de la fauna y la destrucción y recolección de ejemplares de la flora en los parques nacionales, excepto cuando se haga por las autoridades del parque o por orden o bajo la vigilancia de las mismas o para investigaciones científicas debidamente autorizadas.

Los Gobiernos Contratantes convienen además en proveer los parques nacionales de las facilidades para el solaz y la educación del público, de acuerdo con los fines que persigue esta Convención (…)” (el destacado fue agregado).

Además, como se indicó ut supra, el Reglamento a la Ley de Biodiversidad conceptualiza a los parques nacionales como “Áreas geográficas, terrestres, marinas, marino-costeras, de agua dulce o una combinación de éstas (sic), de importancia nacional, establecidas para la protección y la conservación de las bellezas naturales y la biodiversidad, así como para el disfrute por parte del público. Estas áreas presentan uno o varios ecosistemas en que las especies, hábitat y los sitios geomorfológicos son de especial interés científico, cultural, educativo y recreativo o contienen un paisaje natural de gran belleza (…)”.

Por su parte, para la UICN, tal como se consignó en el considerando anterior, los parques nacionales responden a la categoría II de gestión y aluden a grandes áreas naturales o casi naturales establecidas para proteger procesos ecológicos a gran escala, junto con el complemento de especies y ecosistemas característicos del área, que también proporcionan la base para oportunidades espirituales, científicas, educativas, recreativas y de visita que sean ambiental y culturalmente compatibles. Este tipo de categoría de manejo tiene como propósito principal la protección de la biodiversidad natural, la estructura ecológica y los procesos ambientales, así como la promoción de la educación y del uso recreativo.

Adicionalmente, la UICN ha puntualizado diferenciaciones entre los parques nacionales -categoría II- y las áreas de manejo de hábitat/especies -categoría IV- (conocida en el país como refugios nacionales de vida silvestre) al indicar que: “El objetivo de gestión de las áreas protegidas de categoría IV es la conservación de especies o hábitats concretos, y en consecuencia prestan menor atención a otros elementos del ecosistema, mientras que el objetivo de las áreas protegidas de categoría II es conservar ecosistemas funcionales completos. Las categoría (sic) II y IV pueden asemejarse mucho en algunas circunstancias y la distinción se basa en parte en la cuestión de los objetivos – por ej., si el objetivo es proteger en la medida de lo posible todo el ecosistema (categoría II) o si se centra en proteger unas pocas especies o hábitats clave (categoría IV)” (Directrices para la aplicación de las categorías de gestión de áreas protegidas, UICN, 2018; la negrita fue incorporada).

Por otra parte, en relación con el cuerpo normativo impugnado, la PGR emitió la opinión jurídica nro. OJ-082-2020:

“Al amparo de lo dispuesto en el artículo 18 de la Ley Forestal, el artículo 11 de su Reglamento (Decreto Ejecutivo no. 25721 de 17 de octubre de 1996) establece que, en las áreas silvestres protegidas, excepto en los parques nacionales y reservas biológicas, se pueden autorizar las actividades de ecoturismo, únicamente en las áreas señaladas al efecto por el SINAC, y que, el SINAC podrá autorizar la realización de las actividades permitidas mediante el otorgamiento de permisos de uso y el cobro del canon respectivo.

Según esa misma norma, se pueden desarrollar actividades de ecoturismo como senderos o caminos rústicos, áreas para acampar, miradores, canopy, puentes colgantes, rapel, áreas para descanso, áreas para almuerzo, kayak, canotaje, ciclismo recreativo y pesca; actividades de investigación como miradores para observación de especies silvestres o para control y protección, senderos, instalación de trampas cámara y recolección de muestras de biodiversidad; y, actividades de capacitación, como giras demostrativas, aulas ecológicas y programas de educación ambiental; y otras relacionadas y debidamente autorizadas, que sean compatibles con el ambiente.

Por su parte, acorde con esas limitaciones, en el artículo 82 de la Ley de Conservación de la Vida Silvestre se establece que en los refugios de vida silvestre estatales no se pueden llevar a cabo proyectos de desarrollo y aprovechamiento de recursos naturales, lo cual se reitera en el artículo 70 del Reglamento a la Ley de Biodiversidad (Decreto no. 34433 de 11 de marzo de 2008) que dispone que, en esos refugios, solo pueden llevarse a cabo actividades de capacitación, investigación y ecoturismo.

En cuanto a las actividades que pueden desarrollarse en los parques nacionales y reservas biológicas, el artículo 58 de la Ley de Biodiversidad establece que las prohibiciones al respecto son las que establece la Ley de Creación del Servicio de Parques Nacionales (no. 6084 de 24 de agosto de 1977). Dicha ley, en los artículos 8, 10 y 12 dispone que en esos espacios está prohibido realizar cualquier tipo de actividad comercial, agrícola o industrial, que la actividad de pesca está limitada a la artesanal y deportiva cuando se compruebe que no cause alteraciones ecológicas y que no pueden otorgarse concesiones de tipo alguno para la explotación de productos, ni otorgarse permiso para establecer otras instalaciones, distintas a las del Servicio de Parques Nacionales.

Al respecto, resulta relevante lo dispuesto en el en el artículo 3° de la Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América (aprobada mediante Ley no. 3763 de 19 de octubre de 1966) en cuanto a que las riquezas existentes en los parques nacionales no podrán explotarse con fines comerciales.

Con base en estas últimas disposiciones, se ha indicado que los Parques Nacionales y las Reservas Biológicas son áreas silvestres de conservación absoluta. (Sala Constitucional, voto no. 16975-2008 de las 14 horas 53 minutos de 12 de noviembre de 2008. Además, véanse nuestros pronunciamientos nos. C-228-1998 de 3 de noviembre de 1998, C-297-2004 de 19 de octubre de 2004, OJ-236-2003 17 de noviembre de 2003, OJ-093-2004 de 19 de julio de 2004, OJ-069-2008 de 12 de agosto de 2008 y OJ-027-2018 de 28 de febrero de 2018).

Por otra parte, de conformidad con el artículo 39 de la Ley de Biodiversidad, en las áreas silvestres protegidas, el Consejo Nacional de Áreas de Conservación está facultado para aprobar los contratos o concesiones de servicios y actividades no esenciales, tales como estacionamientos, servicios sanitarios, administración de instalaciones físicas, servicios de alimentación, tiendas, construcción y administración de senderos, administración de la visita y otros que defina el Consejo Regional del Área de Conservación respectiva. Esas concesiones no pueden incluir ejercicio de las responsabilidades propias del MINAE como la definición, el seguimiento de estrategias, los planes y los presupuestos de las Áreas de Conservación; ni tampoco la autorización de edificaciones privadas.

En principio, todas las áreas silvestres protegidas, deben ser administradas y utilizadas conforme a las anteriores disposiciones. Y, aunque esas regulaciones y limitaciones de uso están fijadas en normas legales y reglamentarias, debe tenerse en cuenta que “a partir de su declaratoria se pretende dotar a estas zonas geográficas de una vocación conservacionista y proteccionista necesarias para cumplir su función.” (Sala Constitucional, votos nos. 21258-2010 de las 14 horas de 22 de diciembre de 2010, 16938-2011 de las 14 horas 37 minutos de 7 de diciembre de 2011 y 2752-2014 de las 9 horas 15 minutos de 28 de febrero de 2014. El destacado no es del original). Y que, en virtud de ello, las áreas silvestres protegidas están enmarcadas “dentro de un contexto de planificación que tiene la finalidad de preservar el recurso natural.” (Sala Constitucional, voto no. 16938-2011 ya citado).

En consecuencia, la modificación de las normas referidas a un área silvestre protegida en la que se establezcan condiciones de uso y regulaciones sobre su administración, distintas al régimen aplicable a la generalidad de esos espacios protegidos, podrían implicar una desmejora en el nivel de protección del área y, en consecuencia, la vulneración de principios constitucionales.

En ese sentido, en otras oportunidades, hemos indicado que:

“De dicho artículo [artículo 18 de la Ley Forestal] se desprende que en la actualidad, los usos permitidos legalmente en el patrimonio natural del Estado, se reducen a labores de investigación, capacitación y ecoturismo, que además deben ser aprobadas por el Ministerio de Ambiente, Energía y Telecomunicaciones. Dichas restricciones no tienen rango constitucional, por lo que es claro que podrían modificarse con una norma de la misma naturaleza, tal como sucede con el proyecto que se pretende aprobar al no existir un principio de «inmutabilidad del ordenamiento jurídico.» Sin embargo, debe reiterarse que tratándose de la disminución de las garantías de protección, tal como sería autorizar otras actividades que actualmente no están permitidas, resulta indispensable que existan criterios técnicos que lo justifiquen, pues de lo contrario, la decisión se convertiría en arbitraria y violatoria del Derecho de la Constitución, específicamente del derecho a disfrutar de un ambiente sano y ecológicamente equilibrado. En esa misma línea, cualquier actividad que se autorice realizar en el refugio, no puede ser incompatible con la protección ambiental que se pretende garantizar con su creación, pues se estaría desnaturalizando su razón de ser.

Así las cosas, para ampliar el rango de actividades permitidas en el Refugio de Vida Silvestre Ostional, no sólo (sic) debe contarse con los estudios técnicos que lo justifiquen, sino que además, las actividades a realizar no pueden ser incompatibles con la vocación ambiental de los terrenos ni poner en riesgo el desove de tortugas en el lugar. Sólo (sic) con el cumplimiento de estos requisitos, podría conseguirse que el interés colectivo y el problema social que se pretende tutelar, no lo sea en menoscabo del ambiente, como interés jurídico superior.” (Opinión jurídica no. OJ-014-2010 de 26 de marzo de 2010. En similar sentido, véanse las opiniones nos. OJ-033-2011 de 13 de junio de 2011, OJ-156-2014 de 17 de noviembre de 2014, OJ-084-2015 de 6 de agosto de 2015, OJ-088-2018 de 18 de setiembre de 2018) (…)

(…) si lo que se quiere es ampliar ese marco normativo habilitante, el legislador debe asegurarse de que las actividades o desarrollos que se habilitarán sean acordes a lo dispuesto por la Sala Constitucional, es decir, que serán compatibles con la tutela ambiental, y que se encuentren en sintonía con la capacidad de ocupación del lugar, lo cual, en todo caso, como lo dispuso ese órgano jurisdiccional, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica.

Entonces, aunque en el proyecto se indica que se habilitarían actividades comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla, y que en la zona turística se otorgarán permisos para llevar a cabo obras y servicios de toda índole, lo cierto es que, la autorización de esas actividades deberá depender de lo que técnicamente se determine como viable en el correspondiente instrumento de planificación del área silvestre protegida o en las evaluaciones de impacto ambiental que correspondan. Pues, de lo contrario, la habilitación general plasmada en la iniciativa legal, no tendría sustento científico y técnico que respalde la no afectación del patrimonio natural e histórico arquitectónico de la isla, como expresamente lo requirió la Sala Constitucional.

Otro aspecto que debe valorarse es la conveniencia de transformar el actual refugio de vida silvestre en un Parque Nacional, tal y como lo plantea el proyecto, pues, como ya se dijo, los parques nacionales, junto con las reservas biológicas, son considerados espacios de conservación absoluta, y, en consecuencia, las actividades a desarrollar en ellos son más limitadas.

Incluso, como se señaló, la Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los Países de América dispone que las riquezas existentes en los parques nacionales no podrán explotarse con fines comerciales, y ello podría representar un obstáculo para las actividades que se proyectan desarrollar en la isla (…)

(…) debe revisarse la delimitación propuesta del área silvestre protegida, pues pareciera que no se estarían incluyendo las 210 hectáreas de área marina e islotes, que fueron añadidas al Refugio de Vida Silvestre mediante el Decreto 34282 y que la Sala Constitucional mantuvo como parte del área protegida en el voto no. 13099-2010.

Lo anterior podría implicar, al menos, un grave conflicto de aplicación de normativa, porque si el proyecto se aprueba tal y como está, podría entenderse que la isla San Lucas y el área marina circundante de seis metros de profundidad serían un parque nacional, y que, el resto de área no contemplada, mantendría su naturaleza de refugio de vida silvestre, al que se le seguirían aplicando las disposiciones del Decreto de su creación.

Otra posible interpretación, que llevaría consigo la inconstitucionalidad de la norma, sería que, la aprobación de la ley, al no contemplar el espacio indicado, implica la reducción del área silvestre protegida sin contar con los estudios técnicos exigidos al efecto. (Al respecto, véanse los votos de la Sala Constitucional nos. Véanse los votos nos. 1056-2009 de las 14 horas 59 minutos de 28 de enero de 2009, 13367-2012 de las 11 horas 33 minutos de 21 de setiembre de 2012, 12887-2014 de 14 horas 30 minutos de 8 de agosto de 2014, 673-2019 de las 12 horas de 16 de enero de 2019, entre otros)” (el destacado fue añadido).

Ahora bien, se reitera que, pese a que tanto los refugios nacionales de vida silvestre como los parques nacionales constituyen categorías de manejo de áreas silvestres protegidas, no menos cierto es que abrigan características distintivas y únicas, toda vez que cada una de ellas persigue objetivos de manejo específicos con metas de conservación propias. Incluso, cada categoría se distingue por un grado de protección determinado en consonancia con sus particulares factores biológicos, edáficos, hidrológicos, fisiográficos, ecológicos, climáticos, entre otros, lo que a la vez define el nivel de intervención humana admisible.

En conclusión, el hecho de que las áreas silvestres protegidas tengan diversas categorías de manejo implica que cada una de estas tiene diferentes características desde el punto de vista biológico, edáfico, hidrológico, fisiográfico, ecológico, climático, entre otros, y, por ende, diversos objetivos de conservación, lo que obliga a regulaciones normativas y disposiciones administrativas propias de cada categoría; de lo contrario, no solo desde el punto de vista ambiental sino también desde el lógico‑jurídico sería superflua la clasificación entre distintas categorías de manejo que se hace en el ordinal 32 de la Ley Orgánica del Ambiente. Dicho de otro modo, aun cuando el área silvestre protegida responde como un todo a una serie de objetivos ‑véase el artículo 35 eiusdem‑, no menos cierto es que cada una de las categorías de manejo en concreto persigue fines de conservación diferentes de acuerdo con sus cualidades propias, lo que conlleva a específicas formas de administración, manejo, planificación, usos y prohibiciones.

Adviértase que la protección del ambiente no debe darse de forma aislada, sino que se tiene que efectuar dentro de un sistema, de manera tal que se tomen en consideración otros bienes constitucionales involucrados. En ese sentido, debe considerarse que la isla San Lucas también cuenta con una protección particular en relación con el patrimonio cultural que resguarda, lo cual ya fue objeto de análisis de este Tribunal en la supracitada sentencia nro. 2010013099 de las 14:56 horas del 4 de agosto de 2010:

“VII.- Sobre la protección al patrimonio cultural.- Esta Sala tiene la función de ser el garante de la supremacía constitucional, de los derechos y de las libertades fundamentales contenidas en la Constitución Política, y de los derechos humanos y de aquellos instrumentos de carácter fundamental aplicables en la República, conforme a lo expuesto en el considerando anterior, la problemática jurídica que abordan las acciones de inconstitucionalidad no se agotan con la anterior declaratoria de inconstitucionalidad, porque trae aparejada otros derechos fundamentales que deben ser protegidos. En el reconocimiento judicial del 4 de junio de 2010, este Tribunal Constitucional, así como las partes y los coadyuvantes apersonados al proceso, constatamos la visible falta de mantenimiento de los edificios ubicados en la Isla San Lucas por el paso de los lustros y la necesidad de tomar acciones para detener el deterioro avanzado que ha sufrido la infraestructura que ahí existe (y las estructuras en madera que existieron en el lugar), y la imperiosa necesidad de detener su inminente desaparición.

Por otra parte, el testimonio histórico de sitios arqueológicos de culturas que vivieron en la isla, y cuya protección se adeuda no sólo a propósito de la función histórica que se le había asignado como centro penitenciario. La Sala en este tema reitera lo resuelto en la sentencia No. 2003-03656, en cuanto estableció que:

“C.- DE LA TUTELA CONSTITUCIONAL AL PATRIMONIO CULTURAL. ARTÍCULOS 50 Y 89 DE LA CONSTITUCIÓN POLÍTICA.

XVI. DELIMITACIÓN DEL ÁMBITO DE APLICACIÓN Y SUSTENTO JURÍDICO-CONSTITUCIONAL

La importancia de la protección del patrimonio cultural, a nivel nacional, regional e internacional no tiene discusión, precisamente por la trascendencia que este acervo representa para el necesario mantenimiento y fortalecimiento de la identidad de los pueblos (población y/o nación), sea, en los ámbitos histórico, social, geográfico y cultural. De todos es sabido que la comprensión del pasado -vinculación con las raíces- implica la del tiempo presente y establece las posibilidades del futuro desarrollo material y psico-social de los individuos y grupos humanos. Se trata del reconocimiento de un valor, entendido como la incorporación de un potencial económico, o valor que se realiza en función a un fin trascendente (valor espiritual, cultural o artístico). Es por lo anterior que el concepto de patrimonio histórico-arquitectónico ha evolucionado y con él los criterios para su protección, de manera que ya no se justifica en un ideal "romántico", sino como una condición de identidad de los pueblos, como parte integrante de su historia y su cultura, atendiendo a razones de desarrollo social-económico y urbanístico-ambiental o urbanístico-ecológico, y que tiene un sustento más humano.

Es así como se hace necesaria la protección por los Estados, que permita una acción eficaz y eficiente, sobre la base de una construcción científica coherente con la realidad, tanto en el ámbito de las teorías territoriales y arquitectónicas, como en el legal, en tanto interactúa con otras disciplinas y saberes, como la Historia, la Antropología, la Arquitectura, y la Teoría de la Restauración, y el Derecho, entre otras; y que tome en consideración las circunstancias propias del país, como lo son el grado de subdesarrollo y la dependencia económica. Es así como la protección de este patrimonio debe integrarse de manera activa a los recursos sociales y económicos del país, para que no constituya una carga para el Estado, ni tampoco para la población (propietarios, poseedores o titulares de algún derecho real sobre los bienes incorporados a este régimen especial de tutela), de manera tal que se configure como otro recurso más que genere bienestar social.

XVII.La protección del patrimonio cultural se enmarca dentro del Derecho Urbanístico, que últimamente ha venido a ser comprendido dentro del marco más amplio del Derecho Ambiental, el cual encuentra su sustento jurídico-constitucional en los artículos 50 y 89 de la Constitución Política, en tanto disponen textualmente:

"El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza.

Toda persona tiene derecho a un ambiente sano y ecológicamente equilibrado. Por ello está legitimado para denunciar los actos que infrinjan ese derecho y para reclamar la reparación del daño causado.

El Estado garantizará, defenderá y preservará ese derecho. La ley determinará las responsabilidades y las sanciones correspondientes" (artículo 50); y "Entre los fines culturales de la República están: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación y apoyar la iniciativa privada para el progreso científico y artístico" (artículo 89).

Esta última norma da directrices para que las autoridades públicas impulsen la protección del medio ambiente, entendido esto de una manera integral, sea, no entendido en su sentido tradicional que se ha limitado al ámbito del recurso natural, lo que comúnmente se conoce como "lo verde", en tanto se ha entendido que comprende los recursos naturales (bosques, agua, aire, minerales, flora y fauna, etc.), sino también en lo relativo al entorno en que se vive, que comprende, no sólo a las bellezas escénicas de la naturaleza, como el paisaje, sino también todo lo relativo a las ciudades y conglomerados urbanos y rurales, es decir, al concepto de lo urbano. Bien puede afirmarse que se trata de dos aspectos complementarios de una realidad, como las dos caras de una misma moneda: el ambiente natural y el ambiente urbano. Es así como se pretende un ambiente más humano, es decir, un ambiente que no sólo sea sano y ecológicamente equilibrado, sino también como un referente simbólico y dador de identidad nacional, regional o local.

Así, el derecho fundamental a tener un ambiente sano y ecológicamente equilibrado -desarrollado ampliamente por la jurisprudencia constitucional- comprenderá, tanto sus partes naturales, como sus partes artificiales, entendiéndose por tales, el hábitat humano, lo construido por el hombre, sea, lo urbano, de manera que se mantengan libres de toda contaminación, tanto por los efectos y repercusiones que puede tener en la salud de las personas y demás seres vivientes, como por el valor intrínseco del ambiente.” A la luz de lo anterior, la Sala debe analizar el caso concreto, dado que ambos derechos, ambiental natural y ambiental urbano deben equilibrarse cuando el Patrimonio Cultural se encuentra presente, dado que se trata también de valores constitucionales que no pueden ser legítimamente excluidos, de los derechos de acceso y de disfrute de todos los particulares, nacionales y extranjeros, lo que se conoce como su puesta en valor.

Pero la Sala sostiene que debe desmitificarse que la aspiración del desarrollo humano únicamente puede conseguirse en un ambiente urbano. Frente a esta situación, la Sala estaría ante una disyuntiva: aunque el Decreto Ejecutivo 34282-TUR-MINAE-C contenga disposiciones que rozan claramente con el artículo 50 de la Constitución Política, y que así se declara en esta sentencia, hay otras que sí encuentran su fundamento en la legislación nacional e internacional, las cuales no pueden eliminarse porque encuentran precisamente su sustento en normas de mayor rango jurídico, además de ser consecuentes con su condición de derecho fundamental (véase el Considerando XX de la sentencia 2003-03656). En tales supuestos, con fundamento en el derecho fundamental al ambiente sano y ecológicamente equilibrado, no procede sacrificar la tutela al Patrimonio Nacional y Cultural.

VIII.Continua: Protección al Patrimonio Nacional y Cultural. Legislación internacional aplicable. La importancia de esta acción precisamente radica en determinar en qué grado debe garantizarse la protección y conservación del Patrimonio Nacional y Cultural, y como (sic) se debe conciliar con el derecho a un ambiente sano y ecológicamente equilibrado. Para los efectos, la Sala estima necesario transcribir la legislación internacional que hace referencia al valor cultural y la protección que esta merece de parte de los diversos Estados del mundo. Para empezar, los países de la región centroamericana establecieron con el “Convenio para la conservación de biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central” lo siguiente:

“Artículo 19.- Se deberán desarrollar estrategias nacionales para ejecutar los planes de Sistemas de Áreas Silvestres Protegidas, siendo garantes de funciones económicas básicas para el desarrollo local, regional y global, y del fortalecimiento de la presencia institucional en las áreas mencionadas, para lo cual se gestionará financiamiento nacional e internacional para su efectiva ejecución.” “Artículo 22.- Se deberá promover a través de todos los medios posibles, prácticas de desarrollo ambientalmente compatibles en las áreas circunvecinas a las áreas protegidas, no sólo para apoyar la conservación de los recursos biológicos, sino para contribuir a un desarrollo rural sustentable.” “Artículo 28.- Se apoyan las acciones para estimular el ecoturismo en la región, como un mecanismo por el cual se valore el potencial económico de las Áreas Protegidas; se garantice parte de su financiamiento, y se contribuya a mejorar la calidad de vida de las poblaciones adyacentes a dichas regiones.

Para ello, se deberán implementar facilidades migratorias y de infraestructura para favorecer el ecoturismo en zonas fronterizas.” El numeral 37 de este Convenio establece que en la interpretación del Convenio no se debe afectar los derechos y obligaciones de los Estados Centroamericanos que se deriven de la existencia de convenciones internacionales previas, relacionados con la conservación de recursos biológicos y áreas protegidas. Cuando el Tratado señala con conceptos como “desarrollo local, regional y global”, “desarrollo rural sustentable”, y “estimular el ecoturismo” no solo se refiere al compromiso para la protección de áreas silvestres, sino también al desarrollo humano. Reitera esta Sala Constitucional que, en modo alguno, pueden interpretarse como un alejamiento a los criterios constitucionales que se deben desdoblar de la doctrina de los artículos 50 y 89 de la Constitución Política, de que el único y verdadero desarrollo es aquél compatible cuando está fundado en la sustentabilidad ambiental.

Lo anterior implica, por su puesto, impedir que la legislación o medidas de otra naturaleza que podrían adoptar los Estados, conlleven retrocesos en las garantías ambientales, y otras garantías que establece el Convenio, pero es claro que admite el desarrollo de actividades sostenibles ambientalmente.

El Convenio sobre la protección del patrimonio mundial, cultural y natural, aprobado por Ley No. 5980, establece que:

“Artículo 1 A los efectos de la presente Convención se considerará “patrimonio cultural”:

- los monumentos: obras arquitectónicas,…elementos o estructuras de carácter arqueológico,… que tengan un valor universal excepcional desde el punto de vista de la historia, del arte o de la ciencia.

- los conjuntos: grupos de construcciones, aisladas o reunidas, cuya arquitectura, unidad e integración en el paisaje les dé un valor universal excepcional desde el punto de vista de la historia, del arte o de la ciencia.

- los lugares: obras del hombre u obras conjuntas del hombre y la naturaleza así como las zonas, incluidos los lugares arqueológicos que tengan un valor universal excepcional desde el punto de vista histórico, estético, etnológico o antropológico.” “Artículo 2 A los efectos de la presente Convención se considerarán “patrimonio natural”:

- los monumentos naturales…

- las formaciones geológicas y fisiográficas y las zonas estrictamente delimitadas que constituyan el hábitat de especies, animal y vegetal, amenazadas, que tengan un valor universal excepcional desde el punto de vista estético o científico, - los lugares naturales o las zonas naturales estrictamente delimitadas, que tengan un valor universal excepcional desde el punto de vista de la ciencia, de la conservación o de la belleza natural”, “Artículo 4 Cada uno de los Estados Partes en la presente Convención reconoce que la obligación de identificar, proteger, conservar, rehabilitar y transmitir a las generaciones futuras el patrimonio cultural y natural situado en su territorio, le incumbe primordialmente. Procurará actuar con ese objeto por su propio esfuerzo y hasta el máximo de los recursos de que disponga, y llegado el caso, mediante la asistencia y la cooperación internacionales de que se pueda beneficiar, sobre todo en los aspectos financiero, artístico, científico y técnico.” “Artículo 5 Con objeto de garantizar una protección y una conservación eficaces y revalorizar lo más activamente posible el patrimonio cultural y natural situado en su territorio y en las condiciones adecuadas a cada país, cada uno de los Estados Partes en la presente Convención procurará dentro de lo posible:

• a)adoptar una política general encaminada a atribuir al patrimonio cultural y natural una función en la vida colectiva y a integrar la protección de ese patrimonio en los programas de planificación general; b) instituir en su territorio, si no existen, uno o varios servicios de protección, conservación y revalorización del patrimonio cultural y natural, dotados de un personal adecuado que disponga de medios que le permitan llevar a cabo las tareas que le incumban; c) …
• d)Adoptar las medidas jurídicas, científicas, técnicas, administrativas y financieras adecuadas, para identificar, proteger, conservar, revalorizar y rehabilitar ese patrimonio; y e)…” “Artículo 6 Respetando plenamente la soberanía de los Estados en cuyos territorios se encuentre el patrimonio cultural y natural a que se refieren los artículos 1 y 2 y sin perjuicio de los derechos reales previstos por la legislación nacional sobre ese patrimonio, los Estados Partes en la presente Convención reconocen que constituye un patrimonio universal en cuya protección la comunidad internacional entera tiene el deber de cooperar.

Los Estados Partes se obligan, en consecuencia y de conformidad con lo dispuesto en la presente Convención, a prestar su concurso para identificar, proteger, conservar y revalorizar el patrimonio cultural y natural de que trata el artículo 11, párrafos 2 y 4, si lo pide el Estado en cuyo territorio esté situado.

Cada uno de los Estados Partes en la presente Convención se obliga a no tomar deliberadamente ninguna medida que pueda causar daño, directa o indirectamente, al patrimonio cultural y natural de que tratan los artículos 1 y 2 situado en el territorio de otros Estados Partes en esta Convención.” “Artículo 12 El hecho de que un patrimonio cultural y natural no se haya inscrito en una u otra de las dos listas de que tratan los párrafos 2 y 4 del artículo 11 no significará en modo alguno que no tengan un valor universal excepcional para fines distintos de los que resultan de la inscripción de estas listas.” La Sala sostiene que el Convenio sobre la protección del patrimonio mundial, cultural y natural establece obligaciones aún más concretas para los Estados partes, las cuales quedaron aprobadas por la Asamblea Legislativa mediante la Ley No. 5980, dentro de las cuales nuestro país no solo debe honrar, sino que se compromete a ejercer medidas positivas o afirmativas como “identificar, proteger, conservar, rehabilitar y transmitir a las generaciones futuras el patrimonio cultural y natural”.

Como obligaciones de hacer, el Estado debe primordialmente adoptar medidas que impliquen esfuerzos en la localización y ubicación de bienes que se regulan bajo el amparo del Tratado, lo cual significa que el Estado no solo debe buscar el patrimonio cultural y natural dentro de su territorio para la nominación futura de posibles bienes, sino que su compromiso se debe traducir en acciones que impliquen protección y conservación de los mismos, así como la rehabilitación de áreas que contengan bienes que forman parte de ese acervo patrimonial cultural y natural de un Estado. Para esta Sala, la obligación establecida en el artículo 4 del Convenio no se agota con la declaratoria formal de sitios bajo un determinado régimen legal (nacional o internacional), sino que implica una función asertiva y progresiva del Estado, sin perjuicio de obtener eventualmente los beneficios financieros, artísticos, científicos y técnicos a través de los mecanismos que prevé el Convenio, por ello, la puesta en funcionamiento de los bienes culturales es posible mediante su rehabilitación, es decir, su puesta en valor como fuente de recursos financieros.

El artículo 5 del Convenio exige medidas jurídicas, científicas, técnicas, administrativas y financieras adecuadas para lograr los cometidos del artículo 4, por lo que al identificar, proteger y conservar, como también revalorizar y rehabilitar el patrimonio, el Convenio utiliza las afirmaciones “más activamente” y la necesidad de “medidas administrativas y financieras adecuadas”, todo lo cual, en la opinión de la Sala, denota una exigencia de eficacia, que permitiría traducir esas obligaciones con acciones concretas como la coordinación inter-institucional y las presupuestarias. Lo anterior, entonces, debe entenderse que no se limita palmariamente a la adopción de meras medidas jurídicas sino concertar medidas asertivas por parte de los Estados individualmente. Finalmente, si los bienes señalados en los artículos 1 y 2 del Convenio son declarados patrimonio universal y se constituyen en la obligación de los Estados parte de “cooperar” en la protección, según el artículo 6, implica prohibir todas aquellas medidas que vayan en su detrimento, o incluso las omisiones que tengan igual resultado, de modo que no es lícito, a la luz del convenio, tomar medidas intencionales para dañar, directa o indirectamente el patrimonio cultural y natural, lo cual irradia en nuestro criterio las obligaciones primordiales de los Estados, reiteradas en el párrafo 2 del artículo 6 cuando reafirma la obligación de identificar, proteger, conservar y revalorizar ese patrimonio que se regula internacionalmente mediante los párrafos 2 y 4 del artículo 11 del Convenio sobre la protección del patrimonio mundial, cultural y natural.

La Sala entiende que la obligación abarca más allá de lo dispuesto en el artículo 11, de modo que los bienes que aún no están bajo las regulaciones de los mencionados párrafos, siempre deberán ser conservados y protegidos por los Estados por su valor potencial, como bienes que aún no califican, pero no los excluye de la Lista del Patrimonio Mundial en un futuro, conforme avancen los criterios del Comité del Patrimonio Mundial. No deducir una primera obligación de los Estados de identificar y ubicar bienes culturales y naturales en sus territorios, sería un contrasentido a los fundamentos de la Convención cuando afirma constatar “que el patrimonio cultural y el patrimonio natural están cada vez más amenazados de destrucción, no sólo por las causas tradicionales de deterioro sino también por la evolución de la vida social y económica que las agrava con fenómenos de alteración o de destrucción aún más temibles.”, como también considerando que “el deterioro o la desaparición […] constituye un empobrecimiento nefasto del patrimonio de todos los pueblos del mundo.”, además de considerar que la protección es en muchos casos incompleta.

Como se ve, la cobertura jurídica de los instrumentos internacionales es igual para el patrimonio natural y cultural, consecuentemente todo aquello que esté fuera de estos estándares resultará ilegítimo, lo cual incluye desatenciones que agraven las condiciones de los bienes culturales. De conformidad con lo anterior, corresponde a la Sala analizar, si también son fines legítimos de los Estados impulsar el desarrollo mediante políticas, que permitan la explotación de sitios arqueológicos, de patrimonio natural, cultural, o mixtos, de manera que sean puestos en valor, según lo que se pretende con el Decreto Ejecutivo 34282-TUR-MINAET-C.

El Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central, aprobado por Ley No. 7433, define: “Conservación: Preservación, mantenimiento, restauración, y uso sostenible de los elementos de la biodiversidad”. Precisamente en el artículo 25 de este acuerdo internacional, dentro del marco normativo expresa el interés por integrar diferentes convenciones, las que señala en el siguiente orden: sobre el Comercio Internacional de Especies Amenazadas de Fauna y Flora Silvestre (CITES), la Convención sobre Conservación de Humedales de Importancia Internacional y Sitios para Aves Migratorias (RAMSAR), y la Convención para la Protección del Patrimonio Natural y Cultural de la UNESCO e indica que se deben prestar todas las garantías para su cumplimiento interno. En tal sentido, deben existir efectos concretos de la normativa internacional en el orden interno.

Así que, el meollo de la discusión en la acción no debe radicarse únicamente en el tema de la conservación del patrimonio natural en la Isla San Lucas (entendido como aspectos ecológicos y ambientales únicamente). La Sala ha constatado que el paso de las décadas ha permitido la regeneración del bosque secundario, de manera que en este aspecto, la declaratoria de Área Silvestre Protegida obtuvo la protección del Ministerio de Ambiente, Energía y Telecomunicaciones necesaria para la recuperación de los espacios que antes fueron utilizados para la ganadería, por ejemplo. Pero la palpable falta de mantenimiento del centro histórico, su deterioro progresivo y la amenaza sobre los bienes históricos y culturales existentes en la Isla San Lucas no debe asumirse con ligereza. Con la pretensión del Poder Ejecutivo de desarrollar el ecoturismo en la región, como una medida para dar protección al patrimonio cultural, abre un nuevo campo de discusión que permitiría consecuentemente reafirmar conceptos y bienes que igualmente están protegidos internacionalmente y que se incorporan a la obligación contenida en el artículo 89 de la Constitución Política, al señalar entre los fines culturales, la protección de las bellezas naturales, conservación y desarrollo del patrimonio histórico y artístico de la Nación.

Precisamente, la Convención sobre Defensa del Patrimonio Arqueológico, Histórico y Artístico de las Naciones Americanas (Convención de San Salvador), aprobado por Ley 6360, aplica de igual manera al caso, dado que el Decreto Ejecutivo No. 30.714 del Ministerio de Cultura dicta el acto administrativo que protege los sitios arqueológicas Convención para la Protección del Patrimonio Natural y Cultural relacionadas con la cultura Sapoa-Ometepe (800-1500 d.c.), aunque no lo cita como fundamento jurídico. En este mismo sentido, el Tratado establece que:

“Artículo 1 La presente Convención tiene como objeto la identificación, registro, protección y vigilancia de los bienes que integran el patrimonio cultural de las naciones americanas, para: a) impedir la exportación o importación ilícita de bienes culturales, y b) promover la cooperación entre los Estados Americanos para el mutuo conocimiento y apreciación de sus bienes culturales.” “Artículo 2 Los bienes culturales a que se refiere el artículo precedente son aquellos que se incluyen en las siguientes categorías:

monumentos, objetos, fragmentos de edificios desmembrados y material arqueológico, pertenecientes a las culturas americanas anteriores a los contactos con la cultura europea, así como los restos humanos, de la fauna y flora, relacionados con las mismas; monumentos, edificios, objetos artísticos, utilitarios, etnológicos, íntegros o desmembrados, de la época colonial, así como los correspondientes al siglo XIX; …

todos aquellos bienes culturales que cualquiera de los Estados Partes declaren o manifiesten expresamente incluir dentro de los alcances de esta Convención.” En tal sentido, la Sala estima que la Convención también alcanza las disposiciones del Decreto Ejecutivo 34828-TUR-MINAET-C, en el tanto se procura tutelar los bienes protegidos por la Convención. Entonces, el Convenio de igual forma demanda esfuerzos del Estado en identificar, registrar, proteger, y vigilar los bienes que quedan descritos en el artículo 2, en cuyo caso se trataría no solo de los sitios arqueológicos mencionados, sino también los edificios de la época correspondiente al siglo XIX, por lo que la protección recaería sobre el todo el conjunto y el presidio en la Isla San Lucas que inicia desde el 28 de febrero de 1873. Para concluir, la Sala está convencida de que, la protección de los bienes culturales, históricos y arquitectónicos, permite la posibilidad de desarrollar y acceder a ellos para que cumplan una función social de suma importancia, como lo es transmitir los valores del pasado y del presente de una Nación, sujeto únicamente a las restricciones que no respondan a los principios de razonabilidad y proporcionalidad, o que no estén basados en la técnica y en la ciencia, lo contrario deberá considerarse como una infracción a la Constitución Política (…)

IX.Sobre las implicaciones del desarrollo sustentable y el turismo. - La piedra angular del desarrollo está en la sustentabilidad ambiental, tiene como objetivo proteger y conservar el medio ambiente y sus recursos naturales, en equilibrio con la diversificación económica y el mejoramiento de la calidad de vida humana. La idea medular de los principios de derecho ambiental radica en la utilización racional de los recursos naturales, con la protección del medio ambiente para asegurar la sustentabilidad de las generaciones presentes y futuras. Toda actividad económica o productiva que intervenga o utilice el medio ambiente, debe responder a la filosofía del desarrollo sostenible según el impacto que tenga en él; en ese sentido, al fundarse el Poder Ejecutivo en este tipo de objetivos para el desarrollo económico y social, estima esta Sala que el turismo rural como tal, debe responder a esos valores que protegen el desarrollo sostenible, porque no podría ser la excepción, y es constitucionalmente relevante controlar las repercusiones que pueda generar en el ambiente.

Ejemplo de ello, es la Certificación para la Sostenibilidad Turística que emite el Instituto Costarricense de Turismo como un componente de suma importancia, que denota un avance por proteger el derecho al ambiente sano y ecológicamente equilibrado a la vez de impulsar la diversidad económica, esta medida genera incentivos a favor de las empresas dedicadas a la explotación turística de los recursos naturales y culturales. Por otra parte, la Ley No. 8724, que es Ley de Fomento del Turismo Rural Comunitario, busca tener beneficios a familias y comunidades al utilizar sus localidades como destinos turísticos, y entre sus normas está el inciso a) del artículo 2 que señala: “Dar un uso óptimo a los recursos ambientales que son un elemento fundamental del desarrollo turístico, manteniendo los procesos ecológicos esenciales y ayudando a conservar los recursos naturales y la diversidad biológica.” En este sentido, el Código Ético Mundial para el Turismo, adoptado por la resolución A/RES/406(XIII) de la decimotercera Asamblea General de la OMT en Santiago de Chile, el 27 de diciembre al 1 de octubre de 1999, y adoptado por la Asamblea General de las Naciones Unidas en resolución A/RES/56/212 del 21 de diciembre de 2001, establece que:

“Artículo 3.

El turismo, factor de desarrollo sostenible 1. Todos los agentes del desarrollo turístico tienen el deber de salvaguardar el medio ambiente y los recursos naturales, en la perspectiva de un crecimiento económico saneado, constante y sostenible, que sea capaz de satisfacer equitativamente las necesidades y aspiraciones de las generaciones presentes y futuras.

2. Las autoridades públicas nacionales, regionales y locales favorecerán e incentivarán todas las modalidades de desarrollo turístico que permitan ahorrar recursos naturales escasos y valiosos, en particular el agua y la energía, y evitar en lo posible la producción de desechos.

…

4. Se concebirá la infraestructura y se programarán las actividades turísticas de forma que se proteja el patrimonio natural que constituyen los ecosistemas y la diversidad biológica, y que se preserven las especies en peligro de la fauna y de la flora silvestre. Los agentes del desarrollo turístico, y en particular los profesionales del sector, deben admitir que se impongan limitaciones a sus actividades cuando éstas se ejerzan en espacios particularmente vulnerables: regiones desérticas, polares o de alta montaña, litorales, selvas tropicales o zonas húmedas, que sean idóneos para la creación de parques naturales o reservas protegidas.

5. El turismo de naturaleza y el ecoturismo se reconocen como formas de turismo particularmente enriquecedoras y valorizadoras, siempre que respeten el patrimonio natural y la población local y se ajusten a la capacidad de ocupación de los lugares turísticos." Para el acceso equitativo del desarrollo, se debe abandonar la idea tradicional de que ésta solo se produce en las áreas urbanas, cuando en el medio rural pueden explotarse otros factores que hacen único el lugar, procurando por supuesto no amenazar esas condiciones. No hay duda que la explotación de los recursos naturales implica diversidad económica, en esa medida el medio ambiente requiere de protección para soportar las cargas de la intervención del ser humano, por lo que es necesario asegurar un desarrollo razonable en equilibrio con el medio ambiente, de manera que el control que podría ejercerse se incrementaría según el impacto que pueda tener sobre él.

Por consiguiente, el desarrollo turístico no debe implicar la destrucción de los bienes del dominio público o del entorno, porque depende de su preservación para alcanzar el mejoramiento económico de las comunidades rurales dentro de los parámetros de la sostenibilidad. Dentro de los fines constitucionales del Estado está la de desarrollar políticas que reduzcan las brechas sociales y económicas, ajustado por supuesto a los ambientes, sean naturales, rurales o mixtos, todo ello nace de lo preceptuado por el artículo 50 constitucional. Tener acceso al desarrollo, en materia de oportunidades laborales, o en la calidad de vida, y por ende, un progreso económico forman parte del reconocimiento y avance de los derechos humanos, de ahí que el desarrollo rural a través del turismo no debe significar para los individuos abandonar sus costumbres y formas de vida tradicionales para migrar hacia las ciudades, sino un ajuste de ellas con las necesidades y avances actuales.

En este sentido, en el criterio de la Sala el verdadero reto del ser humano es que se genere el progreso y –porque no- felicidad (material y espiritual) sin que amenace los recursos disponibles en el medio ambiente; lo contrario simplemente se traduciría en desigualdades sociales que impiden avanzar hacia un nuevo estadio de desarrollo humano. La Sala reconoce que el balance es muy delicado entre uno y otro, pero para que se dé, sin desmejorar el medio ambiente, se debe acudir a la ciencia y a la técnica, para determinar cuáles son las cargas que pueden soportar determinados ambientes naturales y sus recursos, sin vulnerar el derecho de las generaciones presentes y futuras. Por todo ello, el conflicto entre la protección al medio ambiente y otros derechos que se derivan de él, ampliamente reconocidos en instrumentos internacionales de derechos humanos, merecen estas consideraciones de parte de este Tribunal Constitucional.

Esta Sala estima que el desarrollo rural, que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible. De ahí que si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones.

X.Sobre la protección al entorno y paisajes del patrimonio natural y cultural.- Este Tribunal Constitucional ha derivado de los artículos 7, 48, 50 y 89 constitucionales, y los Tratados Internacionales enunciados, los derechos y principios ambientales, pero a la vez, reconoce la necesidad del Estado de contribuir con políticas para impulsar la diversidad económica, a la vez que de conservación y protección de los bienes culturales y naturales, porque sin uno ni el otro, no podría entenderse que existe progreso humano equitativo para todos los sectores sociales. La protección del ambiente, la diversificación económica y la calidad de vida, son objetivos legítimos del Estado, al tener que implementar políticas de desarrollo en lo urbano y rural. Pero el tipo de progreso en un medio ambiente rural, debe apartarse de un modelo de desarrollo centralista, que supone que ésta puede darse únicamente en lo urbano, cuando debe explotar particularidades y otras necesidades específicas.

Ahora bien, el desarrollo rural, con base en el turismo, debe fundarse sobre otros ejes particulares: uno de ellos es el que la doctrina señala como la conservación de los valores propios de los espacios rurales. Este principio radica en que los espacios rurales exigen ser conservados sosteniblemente. En tal sentido, el bosque, el mar, la montaña, los volcanes, los manglares, humedales, etc. propician diferentes tipos de escenarios de desarrollo como intereses puedan existir. En sí, cada uno se constituye en un valor de apreciación escénica sujeta a la protección constitucional. Pero la labor de focalizar y estimular este tipo de políticas de desarrollo rural, son materias que corresponden al Legislador y al Poder Ejecutivo en sus funciones constitucionales. Esta Sala debe resaltar que la conservación de las características particulares de los ambientes rurales o del entorno natural o paisajista, es un valor contenido en el artículo 89 constitucional que requiere protección y debe dirigirse a la protección del entorno que potencia su valía, no solo como espacio rural, sino también como un destino turístico para que se hagan sentir los efectos positivos en la (sic) comunidades vecinas. En este sentido, el artículo 35 de la Ley Orgánica del Ambiente establece que:

“La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos:

a…

…

• f)Proteger los entornos naturales y paisajistas de los sitios y centro históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico de importancia para la cultura y la identidad nacional.” La Constitución Política señala como objetivos de relevancia jurídica no solo la protección, sino conservación y desarrollo del patrimonio histórico y artístico de la Nación. En el diccionario de la Real Academia Española proteger tiene los siguientes significados: 1.- Amparar, favorecer, defender.; y 2.- Resguardar a una persona, animal o cosa de un perjuicio o peligro, poniéndole algo encima, rodeándole, etc. Por su parte, conservar significa: 1. Mantener algo o cuidar de su permanencia; 2. Mantener vivo y sin daño a alguien; 3. Continuar la práctica de costumbres, virtudes y cosas semejantes; 4. Guardar con cuidado algo, entre otras acepciones.

Y desarrollar en el significado aplicable es acrecentar, dar incremento a algo de orden físico, intelectual o moral. En sintonía con lo anterior, la Ley autoriza como objetivos legítimos la creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas con sitios o centros históricos, arquitectónicos y arqueológicos, lo cual implica que en el manejo de los recursos culturales, es permitida la intervención del hombre para el mantenimiento, la guarda, la preservación y el cuido de los bienes que se ubican en su entorno, a la vez que en el desarrollo se favorece el rescate y realce de los sitios de interés que puedan existir en el lugar y sus alrededores. Los bienes de interés cultural requieren de protección y medidas conservacionistas en el medio en que se encuentran, para que se le pueda singularizar como recurso turístico, o de lo contrario la omisión del Estado implicaría un abandono ilícito desde el punto de vista constitucional y a la luz de los tratados internacionales vigentes en la República.

Aunado a lo anterior, conservar implica la idea de asegurar protección y permanencia, dentro del contexto de los valores y costumbres propios de los espacios urbanos y rurales, por lo que se deben admitir criterios y prácticas de sustentabilidad. La administración y el desarrollo del bien se debe proteger, así como realzar el bien según las características en su medio ambiente, por lo que si se trata de infraestructura creada por el hombre, implicará un manejo técnico, que exige medidas de mantenimiento e inversión para asegurarle el desarrollo a la hora de ser puesto en valor, como su conservación. En el caso de la Isla San Lucas, el inciso f) del numeral 38 de la Ley Orgánica del Ambiente aplica en el tanto existen no solo elementos del patrimonio natural, pues como sitio con edificaciones históricos, y arqueológicos, son importantes para la cultura e identidad nacional. En consecuencia con lo anterior, es importante citar el Código Ético Mundial para el Turismo, en cuanto señala que:

"Artículo 4 El turismo, factor de aprovechamiento y enriquecimiento del patrimonio cultural de la humanidad Los recursos turísticos pertenecen al patrimonio común de la humanidad. Las comunidades en cuyo territorio se encuentran tienen con respecto a ellos derechos y obligaciones particulares.

Las políticas y actividades turísticas se llevarán a cabo con respeto al patrimonio artístico, arqueológico y cultural, que deben proteger y transmitir a las generaciones futuras. Se concederá particular atención a la protección y a la rehabilitación de los monumentos, santuarios y museos, así como de los lugares de interés histórico o arqueológico, que deben estar ampliamente abiertos a la frecuentación turística. Se fomentará el acceso del público a los bienes y monumentos culturales de propiedad privada con todo respeto a los derechos de sus propietarios, así como a los edificios religiosos sin perjuicio de las necesidades del culto.

Los recursos procedentes de la frecuentación de los sitios y monumentos de interés cultural habrían de asignarse preferentemente, al menos en parte, al mantenimiento, a la protección, a la mejora y al enriquecimiento de ese patrimonio.

La actividad turística se organizará de modo que permita la supervivencia y el florecimiento de la producción cultural y artesanal tradicional, así como del folklore, y que no conduzca a su normalización y empobrecimiento. (lo resaltado en negrita no es del original).

La legislación costarricense regula en forma escasa la posible administración de estos sitios históricos, pero de las normas aisladas se deriva de la protección de los entornos naturales y paisajísticos, los cuales admite la intervención del hombre, pero con el ánimo de mejoramiento de parajes, no su destrucción o abandonamiento. La Ley de Patrimonio Histórico-Arquitectónico de Costa Rica, Ley No. 7555 establece que:

“Artículo 9. Obligaciones y Derechos La declaratoria de bienes inmuebles como monumento, edificación o sitio histórico, conlleva la obligación por parte de los propietarios, poseedores o titulares de derechos reales sobre los bienes así declarados:

Conservar, preservar y mantener adecuadamente los bienes.

...

• j)[…] El Estado y la municipalidad respectiva tendrá el derecho de expropiar los bienes; podrán ejercerlo en beneficio de otras entidades públicas. Este derecho abarca los bienes que atenten contra la armonía ambiental o comporten un riesgo para conservar los que han sido declarados de interés histórico-arquitectónico.

El Poder Ejecutivo y la municipalidad respectiva estarán obligados a impedir el derribo total o parcial de una edificación protegida. Garantizar que el uso de los bienes protegidos no alterará su conservación y además será congruente con las características propias del inmueble. En todo caso, ese uso no deberá reñir con la moral, las buenas costumbres ni el orden público.” (lo resaltado en negrita no es del original) Para la Sala también es importante señalar que los artículos 71 y 72 de la Ley Orgánica del Ambiente delimitan con claridad lo anterior:

“Artículo 71.- Contaminación visual. Se considerarán contaminación visual, las acciones, obras o instalaciones que sobrepasen, en perjuicio temporal o permanente del paisaje, los límites máximos admisibles por las normas técnicas establecidas o que se emitan en el futuro.

Artículo 72.- Conservación del paisaje. La autoridad competente promoverá que los sectores públicos y privados participen en la conservación del paisaje.

Cuando para realizar una obra se necesite afectarlo, el paisaje resultante deberá ser por lo menos, da calidad igual que el anterior.” De lo anterior, se extrae no solo los fines de conservación, preservación y desarrollo, como también el principio de sostenibilidad en el aprovechamiento y desarrollo de los bienes del patrimonio artístico, arqueológico y cultural, para enriquecer su entorno mejorando su belleza escénica, y dar acceso y seguridad a los bienes y personas, según aconsejen las normas técnicas y científicas en las respectivas materias. Por otra parte, aparejado con la necesidad de la rehabilitación, restauración, mantenimiento, y control de las actividades, están al final y al cabo, los beneficios sociales y económicos de muchos sectores que dependerán de esta actividad” (el subrayado en el último párrafo es agregado.

Visto lo anterior, cabe reiterar que el numeral 89 de la Constitución Política estatuye como fines culturales, entre otros, la protección, la conservación y el desarrollo del patrimonio histórico del Estado. Además, la ‘Convención para la Protección del Patrimonio Mundial, Cultural y Natural’ preceptúa en su ordinal 5 inciso c), como parte de las obligaciones de los Estados partes, el “Desarrollar los estudios y la investigación científica y técnica y perfeccionar los métodos de intervención que permita a un Estado hacer frente a los peligros que amenacen a su patrimonio cultural y natural; d) Adoptar las medidas jurídicas, científicas, técnicas, administrativas y financieras adecuadas, para identificar, proteger, conservar, revalorizar y rehabilitar ese patrimonio”. Adicionalmente, el numeral 6 eiusdem contempla que los Estados Partes no pueden adoptar de forma deliberada medidas que puedan causar daño directa o indirectamente al patrimonio cultural y natural.

Aunado a lo expuesto, adviértase que, aun cuando este Tribunal Constitucional ha reconocido que la salvaguardia del patrimonio cultural abarca la posibilidad de acceso, a los efectos de garantizar la transmisión de los valores del pasado y del presente, no menos cierto es que esto debe darse en consonancia con el principio de razonabilidad y proporcionalidad.

Sobre este tema, cabe reiterar que, en la sentencia nro. 2003003656 de las 14:43 horas del 7 de mayo de 2003, esta Sala desarrolló el principio constitucional de la puesta en valor del patrimonio cultural, al señalar que:

“la aplicación de este principio se traduce en que la tutela del patrimonio cultural debe fomentar su debida utilidad económica y social, pero de manera tal que no ponga en riesgo su valor cultural; es decir, se intenta fomentar la utilidad de estas edificaciones, de manera tal que se permita su participación y permanencia en la actividad económica y social de la sociedad, pero al mismo tiempo, manteniéndose y conservándose su valor espiritual (artístico, arquitectónico, histórico, técnico, arqueológico, etc.) que motivó y justifica el régimen tutela especial. Es así como se sienta el principio de que los monumentos están destinados a cumplir con una función social, sea, la de contribuir a la cultura e identidad nacional; es decir, que se intenta revalorar el patrimonio monumental en función del interés público y para benéfico de la nación, sin que por ello se afecten los derechos de los particulares en ellos involucrados (derecho de propiedad o libertad de comercio, por ejemplo), toda vez que se intenta erigir estas edificaciones como instrumentos del progreso y el desarrollo, en primer lugar, de su titular, y en segundo lugar, como efecto multiplicador del desarrollo económico del país.

Con ello, se intenta incorporar a un potencial económico, un valor actual, de poner en productividad una riqueza inexplotada mediante el proceso de revalorización, que lejos de mermar su significación puramente histórica o artística, la acrecienta, pasándola del dominio exclusivo de las minorías eruditas al conocimiento y disfrute de la las (sic) mayorías populares. Se parte de la base de que los monumentos son parte de los recursos económicos de las naciones, y por supuesto, de sus propietarios o titulares de algún derecho real, motivo por el que se deben movilizar los esfuerzos en el sentido de procurar su mejor aprovechamiento, como medio indirecto para fomentar el desarrollo del país; sea, como elemento facilitador del turismo, del comercio, o inclusive, o para uso habitacional. En muchos países, a través de la aplicación de este principio se han establecido programas de vivienda popular.

En todo caso, la utilización que se dé este tipo de edificaciones debe comprender actividades que mantengan el valor cultural del bien, es decir, que no pongan en peligro el bien como tal. La puesta en valor equivale a habitar la edificación en condiciones objetivas y ambientales armónicas que, sin desvirtuar su naturaleza, resalten sus características y permitan su óptimo aprovechamiento; por lo que implica una acción sistemática, eminentemente técnica, dirigida a utilizar todos y cada uno de esos bienes conforme a su naturaleza, destacando y exaltando sus características y méritos, hasta colocarlos en condiciones de cumplir a plenitud, la nueva función a que están destinados; sea, la función social que cumplen, a nivel objetivo urbanístico y a nivel meta-funcional. De esta suerte, la conservación y el desarrollo no son contradictorios, sino que están íntimamente ligados, y el segundo presupone el primero, en tanto el patrimonio trae grandes beneficios turísticos, o como excelente opción de los programas de vivienda, que permite una significante economía constructiva (de hasta un 35% del valor total de una obra nueva), y produce una mejor distribución del trabajo y del capital, con lo cual, contribuye a la regeneración social y económica de ese sector.

Asimismo, la puesta en valor ejerce una beneficiosa acción refleja sobre el perímetro urbano, toda vez que la diversidad de los monumentos y edificaciones de marcado interés cultural, histórico, artístico y arquitectónico ubicados en las ciudades forman parte del paisaje urbano, es decir, del ambiente -según la acepción integral explicada anteriormente-, de manera que ejercen un efecto multiplicador sobre el resto del área que se revaloriza en su conjunto y como consecuencia del plan de valorización y saneamiento urbano (planificación urbana). Se aclara, que este principio no es exclusivo de los conjuntos históricos, sino de todo el patrimonio histórico-arquitectónico; sin embargo, como ejemplo de su aplicación, es más claro en el éstos (sic), como por ejemplo la ciudad de la Habana Colonial, o San Juan Viejo, en Puerto Rico, o Antigua Guatemala, lugares donde se ha fomentado la actividad económica y social cotidiana de un centro urbano, donde se realizan actividades comerciales, artesanales, turísticas, también habitacionales; con la única diferencia de que edificaciones que conforman estos centros están sujetas a un régimen especial, por el que se impide su demolición, destrucción total o parcial, y se obliga a sus titulares a su conservación y mantenimiento, así como el sometimiento a las regulaciones de ordenación del tránsito -que son mucho más estrictas y controladas y del ornato, entre las que se incluye las relativas a la colocación de rótulos y anuncios publicitarios” (el resaltado no es del original).

Dicho de otra forma, el resguardo del patrimonio histórico‑arquitectónico trae aparejado, por un lado, la protección del valor cultural y, por otro, el fomento de su utilidad económica y social. En tal sentido, si bien ese tipo de patrimonio destaca por su importancia cultural, también es considerado como un medio facilitador del desarrollo económico, verbigracia, mediante el comercio o el turismo. Sin embargo, el fin principal es la conservación y preservación del patrimonio cultural, motivo por el que las actividades o usos en este no deben ponerlo en peligro, lo que solo se puede prevenir si se cuenta con estudios técnicos previos que posibiliten su tutela. Lo anterior se ejemplifica con lo expuesto en la supracitada sentencia nro. 2003003656, donde se enfatiza que en la recomendación relativa a la salvaguardia de los conjuntos históricos y su función en la vida contemporánea, aprobada en el marco de la Conferencia General de la UNESCO, “se reitera el principio de que la restauración es de carácter excepcional, la cual, en caso de efectuarse, debe basarse en principios científicos”.

Así las cosas, la preservación del patrimonio cultural que se encuentra en la isla San Lucas implica que, previo a la adopción de cualquier decisión legislativa que involucre a él y su entorno, debe contarse con estudios técnicos que respalden su preservación. Lo anterior es imprescindible a los efectos de que se estudie la interacción entre el patrimonio cultural (en este caso de tipo histórico-arquitectónico), el ambiente y el ser humano, así como que se determine si es posible lograr un adecuado equilibrio entre tales elementos. Específicamente, los estudios técnicos deben determinar el tipo de intervención que se puede efectuar en el lugar, a los efectos de: i) garantizar la protección, conservación, revaloración y rehabilitación del patrimonio aludido; y ii) constatar que las medidas a aplicar no van a causar un daño directo o indirecto a tal patrimonio.

Al respecto, en la citada sentencia nro. 2010013099 señaló este Tribunal: “si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones”, así como que: “Los bienes de interés cultural requieren de protección y medidas conservacionistas en el medio en que se encuentran, para que se le pueda singularizar como recurso turístico, o de lo contrario la omisión del Estado implicaría un abandono ilícito desde el punto de vista constitucional y a la luz de los tratados internacionales vigentes en la República.

Aunado a lo anterior, conservar implica la idea de asegurar protección y permanencia, dentro del contexto de los valores y costumbres propios de los espacios urbanos y rurales, por lo que se deben admitir criterios y prácticas de sustentabilidad. La administración y el desarrollo del bien se debe proteger, así como realzar el bien según las características en su medio ambiente, por lo que si se trata de infraestructura creada por el hombre, implicará un manejo técnico, que exige medidas de mantenimiento e inversión para asegurarle el desarrollo a la hora de ser puesto en valor, como su conservación” (énfasis es agregado).

En consonancia con lo anterior, a partir de la jurisprudencia consignada en el apartado II de este voto salvado se evidencia la trascendencia del principio preventivo en materia de patrimonio cultural -sentencia nro. 2002005245 de las 15:20 horas del 29 de mayo de 2002- y la importancia de que la protección dada por el Estado a ese patrimonio se dé “sobre la base de una construcción científica coherente con la realidad, tanto en el ámbito de las teorías territoriales y arquitectónicas, como en el legal, en tanto interactúa con otras disciplinas y saberes, como la Historia, la Antropología, la Arquitectura, y la Teoría de la Restauración, y el Derecho, entre otras; y que tome en consideración las circunstancias propias del país, como lo son el grado de subdesarrollo y la dependencia económica” -sentencia nro. 2003003656 de las 14:43 horas del 7 de mayo de 2003-.

De la mano con lo expuesto, recuérdese que, en la supracitada la ley nro. 4711, mediante la cual se aprobó la recomendación sobre la conservación de los bienes culturales que la ejecución de obras públicas o privadas pueda poner en peligro suscrita en París el 22 de noviembre de 1968, se indicó que: “Con la suficiente anticipación a la realización de obras públicas o privadas que puedan poner en peligro bienes culturales, deberían realizarse detenidos estudios para determinar: a. Las medidas que hayan de tomarse para conservar los bienes culturales importantes in situ; b. La magnitud de los trabajos de salvación necesarios, como la selección de los yacimientos arqueológicos en que hayan de practicarse excavaciones, los edificios que hayan de trasladarse a los bienes culturales muebles que deban salvarce (sic), etc”.

Concerniente al sub iudice, debe resaltarse que, con la emisión de la ley nro. 9892, una porción de la isla San Lucas dejó de ser refugio nacional de vida silvestre y pasó a ser parque nacional, es decir, se le otorgó una categoría de manejo superior. De ahí que, en tesis de principio, cuando se produce un aumento de categoría de manejo se genera un reforzamiento de la defensa ambiental, lo que implica que no necesariamente se requieran estudios técnicos previos para justificar tal decisión; sin embargo, para ello no debe existir duda alguna de que, en efecto, se trata de un aumento en el nivel de protección; caso contrario, los estudios técnicos se vuelven imprescindibles para garantizar que el cambio propuesto, en la práctica, no venga más bien a significar una desmejora.

En la especie se está ante un caso particular, debido a que la isla San Lucas no solo constituye un área silvestre protegida, sino que también ha sido declarada patrimonio cultural. Tal confluencia de circunstancias conlleva que, ante las características particulares -ambientales y culturales- de la isla, resulte menester contar con estudios técnicos que analicen las implicaciones de la interrelación propuesta en la ley entre el patrimonio cultural, el ambiente y el ser humano, y, además, se determine si el referido cambio constituye un adecuado equilibrio entre tales elementos.

Este Tribunal Constitucional ha reconocido que en la isla San Lucas converge una doble protección especial en relación con el derecho al ambiente sano y ecológicamente equilibrado y el derecho al acceso y disfrute del patrimonio cultural. Ello implica que, en el sub examine, deben garantizarse tales derechos de manera armoniosa, a fin de que la tutela de uno no conlleve la lesión del otro. Al respecto, se reitera que, en la sentencia nro. 2003003656, esta Sala destacó que: “la conservación del patrimonio cultural contribuye a mantener el equilibrio ambiental necesario en el desarrollo urbano, al requerir, para su efectiva tutela, el respeto de la escala, la estructura y el dimensionamiento urbanos, regula la capacidad de cargas físicas, cuestiona las funciones y servicios urbanos, lo cual da como resultado, una mejor calidad ambiental; además de que contribuye a mantener la imagen propia o concurrencia perceptiva de la ciudad, lo que le da identidad o cohesión formal”.

De ahí que, en atención al principio de objetivación de la tutela ambiental, para que un cambio de categoría de manejo de un área silvestre protegida (que también tiene zonas de patrimonio cultural declaradas) resulte constitucionalmente válido, debe existir respaldo científico debidamente sustentado que justifique la modificación y proteja al ambiente y al patrimonio cultural frente a afectaciones directas o indirectas. Puntualmente, el numeral 35 la Ley Orgánica del Ambiente señala: “La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos: (…) f) Proteger los entornos naturales y paisajísticos de los sitios y centros históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico, de importancia para la cultura y la identidad nacional”.

Ahora, tales estudios científicos, a los efectos de su validez jurídica en tanto requerimiento para la variación de la categoría de manejo bajo análisis, deben ser previos, suficientes, individualizados y debidamente sustentados a fin de determinar razonablemente que no se causará daño ni se pondrá en peligro al ambiente ni al patrimonio cultural, por lo que en ellos se debe examinar como mínimo: i) el grado de impacto de la medida correspondiente en el ambiente y en el patrimonio cultural; ii) las recomendaciones orientadas a menguar el impacto negativo en el ambiente y en el patrimonio cultural; y iii) la demostración de cómo la medida adoptada implica un desarrollo que satisface los requerimientos del presente sin poner en peligro la capacidad de las generaciones futuras para atender sus propias necesidades -véase la sentencia nro. 2019000673 de las 12:00 horas del 16 de enero de 2019-.

Lo anterior está en consonancia con el principio de objetivación de la tutela ambiental, sobre el cual este Tribunal ha indicado:

“En cuanto al ambiente, objeto del derecho fundamental expuesto, nuestra Carta Magna exige además que sea “sano”. La exigencia “sano” nos conduce a la “capacidad regenerativa” y a la “capacidad de sucesión” para garantizar la vida. De ambos requisitos: “sano” y equilibrado” se desprende la necesidad de un desarrollo sostenible y sustentable; la calidad de vida y la calidad ambiental dependen de ello. Ahora bien, con los conceptos de “ambiente”, “sano” “ecológicamente equilibrado”, la norma constitucional introdujo la ciencia y la técnica en las decisiones ambientales, sean estas legislativas o administrativas, de tal manera que, en los términos de los ordinales 16 de la Ley General de la Administración Pública y 38 de la Ley Orgánica del Ambiente, las actuaciones estatales en materia ambiental deben fundarse y no pueden contradecir las reglas unívocas de la ciencia y la técnica en aras de lograr el goce pleno y universal a un ambiente sano y ecológicamente equilibrado y, además, un “mayor bienestar para todos los habitantes del país”.

En cuanto al sometimiento de las decisiones legislativas y administrativas a las reglas unívocas de la ciencia y la técnica, la Sala lo ha denominado principio de objetivación de la tutela ambiental: “De la objetivación de la tutela ambiental (…) es un principio que en modo alguno puede confundirse con el anterior [principio precautorio o “principio de la evitación prudente”], en tanto, como derivado de lo dispuesto en los artículos 16 y 160 de la Ley General de la Administración Pública, se traduce en la necesidad de acreditar con estudios técnicos la toma de decisiones en esta materia, tanto en relación con actos como de las disposiciones de carácter general –tanto legales como reglamentarias–, de donde se deriva la exigencia de la vinculación a la ciencia y a la técnica con lo cual, se condiciona la discrecionalidad de la Administración en esta materia. De manera que en atención a los resultados que se deriven de esos estudios técnicos –tales como los estudios de impacto ambiental–, si se evidencia un criterio técnico objetivo que denote la probabilidad de un evidente daño al ambiente, los recursos naturales o a la salud de las personas, es que resulta obligado desechar el proyecto, obra o actividad propuestas; y en caso de una "duda razonable" resulta obligado tomar decisiones en pro del ambiente (principio pro-natura), que puede traducirse en la adopción, tanto de medidas compensatorias como precautorias, a fin de proteger de la manera adecuada el ambiente.” (Sentencia de la Sala Constitucional Nos. 21258-10, 17126-06, 14293-05)” (el resaltado fue agregado). (Resolución nro. 2012-13367 de las 11:33 horas del 21 de setiembre de 2012).

Tal criterio se observa en muchos pronunciamientos de esta Cámara, por ejemplo, en la sentencia nro. 2011016938 de las 14:37 horas del 7 de diciembre de 2011:

“IV.- LAS ÁREAS SILVESTRES PROTEGIDAS. Un área protegida es “un área geográfica definida, terrestre o costero-marina, la cual es designada, regulada y manejada, para cumplir determinados objetivos de conservación, es decir producir una serie de bienes y servicios determinados (conservación in situ)” (ver artículo 9 del Convenio para la Conservación de la Biodiversidad y Protección de Áreas Silvestres Prioritarias en América Central, aprobado mediante la Ley No. 7433 del 14 de setiembre de 1994). Asimismo, la legislación interna define las “áreas oficiales de conservación de la flora y fauna silvestres”, como “áreas silvestres protegidas por cualquier categoría de manejo, áreas de protección del recurso hídrico y cualquier otro terreno que forme parte del patrimonio forestal del Estado” (ver artículo 2 de la Ley de conservación de la vida silvestre, No. 7317 del 30 de octubre de 1992). Por su parte, el legislador ha definido las áreas silvestres protegidas, de la siguiente forma:

“ARTÍCULO 58.- Áreas silvestres protegidas Las áreas silvestres protegidas son zonas geográficas delimitadas, constituidas por terrenos, humedales y porciones de mar. Han sido declaradas como tales por representar significado especial por sus ecosistemas, la existencia de especies amenazadas, la repercusión en la reproducción y otras necesidades y por su significado histórico y cultural. Estas áreas estarán dedicadas a conservación y proteger la biodiversidad, el suelo, el recurso hídrico, los recursos culturales y los servicios de los ecosistemas en general.

Los objetivos, la clasificación, los requisitos y mecanismos para establecer o reducir estas áreas se determinan en la Ley Orgánica del Ambiente, No. 7554, de 4 de octubre de 1995. Las prohibiciones que afectan a las personas físicas y jurídicas dentro de los parques nacionales y las reservas biológicas están determinadas, en la Ley de la Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977.

Durante el proceso de cumplimiento de requisitos para establecer áreas silvestres protegidas estatales, los informes técnicos respectivos deberán incluir las recomendaciones y justificaciones pertinentes para determinar la categoría de manejo más apropiada a que el área propuesta debe someterse. En todo caso, el establecimiento de áreas y categorías tomará muy en cuenta los derechos previamente adquiridos por las poblaciones indígenas o campesinas y otras personas físicas o jurídicas, subyacentes o adyacentes a ella” (ver Ley de biodiversidad, No. 7788 del 30 de abril de 1998).

Del mismo modo, la ley formal dispone una serie de objetivos y requisitos para la formación de las áreas silvestres protegidas:

“ARTÍCULO 35.- Objetivos La creación, la conservación, la administración, el desarrollo y la vigilancia de las áreas protegidas, tendrán como objetivos:

• a)Conservar los ambientes naturales representativos de las diferentes regiones biogeográficas y de los ecosistemas más frágiles, para asegurar el equilibrio y la continuidad de los procesos evolutivos y ecológicos.
• b)Salvaguardar la diversidad genética de las especies silvestres de las que depende la continuidad evolutiva, particularmente las endémicas, amenazadas o en peligro de extinción.
• c)Asegurar el uso sostenible de los ecosistemas y sus elementos, fomentando la activa participación de las comunidades vecinas.
• d)Promover la investigación científica, el estudio de los ecosistemas y su equilibrio, así como el conocimiento y las tecnologías que permitan el uso sostenible de los recursos naturales del país y su conservación.
• e)Proteger y mejorar las zonas acuíferas y las cuencas hidrográficas, para reducir y evitar el impacto negativo que puede ocasionar su mal manejo.
• f)Proteger los entornos naturales y paisajísticos de los sitios y centros históricos y arquitectónicos, de los monumentos nacionales, de los sitios arqueológicos y de los lugares de interés histórico y artístico, de importancia para la cultura y la identidad nacional.

ARTÍCULO 36.- Requisitos para crear nuevas áreas Para crear áreas silvestres protegidas propiedad del Estado, cualquiera sea la categoría de manejo que él establezca, deberá cumplirse previamente con lo siguiente:

• a)Estudios preliminares fisiogeográficos, de diversidad biológica y socioeconómicos, que la justifiquen.
• b)Definición de objetivos y ubicación del área.
• c)Estudio de factibilidad técnica y tenencia de la tierra.
• d)Financiamiento mínimo para adquirir el área, protegerla y manejarla.
• e)Confección de planos.
• f)Emisión de la ley o el decreto respectivo” (ver Ley orgánica del ambiente, No. 7554 del 04 de octubre de 1995).

De las citas anteriores y el análisis de los instrumentos normativos indicados por la accionante, se desprende que la declaración de área silvestre protegida requiere una serie de requisitos y estudios, no basta la mera manifestación de voluntad de la Administración (…)

Además, del examen de las normas del orden jurídico ambiental interno, tanto de las que son propias del Poder Legislativo, como de las del derecho internacional aprobado por este (sic), incluyendo reglamentos de esas leyes, se puede observar que un área silvestre protegida tiene una eficacia jurídica especial, en tanto obedece a motivos especiales claramente definidos, se sustenta en estudios científicos y técnicos, está fundamentada en instrumentos normativos específicos, implica una serie de obligaciones para la Administración y está enmarcada dentro de un contexto de planificación que tiene la finalidad de preservar el recurso natural. Al respecto, véase una muestra representativa de normas jurídicas que demuestran lo anteriormente dicho:

“2.-Se entenderá por Reservas Nacionales: Las regiones establecidas para la conservación y utilización, bajo vigilancia oficial, de las riquezas naturales, en las cuales se dará a la flora y la fauna toda protección que sea compatible con los fines para los que son creadas estas reservas” (ver Convención para la protección de la flora, fauna y bellezas escénicas naturales de los países de América, aprobada mediante Ley No. 3763 del 19 de octubre de 1966).

“Artículo 3.- Las partes contratantes deberán elaborar y aplicar sus planes de gestión de forma que favorezcan la conservación de las zonas húmedas inscritas en la "Lista" y, siempre que ello sea posible, la explotación racional de los humedales de su territorio” (ver Convención sobre humedales internacionales como hábitat de aves acuáticas, aprobada por Ley No. 7224 del 09 de abril de 1991).

“Áreas de manejo de vida silvestre: Áreas silvestres que proveen algún grado de manejo y protección a la vida silvestre” (ver Ley de conservación de la vida silvestre, No. 7317 del 30 de octubre de 1992).

“ARTÍCULO 4 COMPROMISOS

1. 1Todas las Partes, teniendo en cuenta sus responsabilidades comunes pero diferenciadas y el carácter específico de sus prioridades nacionales y regionales de desarrollo, de sus objetivos y de sus circunstancias, deberán: […]

• e)Cooperar en los preparativos para la adaptación a los impactos del cambio climático; desarrollar y elaborar planes apropiados e integrados para la ordenación de las zonas costeras, los recursos hídricos y la agricultura, y para la protección y rehabilitación de las zonas, particularmente de África, afectadas por la sequía y la desertificación, así como por las inundaciones” (ver Convención marco de Naciones Unidas sobre el cambio climático, aprobada mediante Ley No. 7414 del 13 de junio de 1994).

“ARTÍCULO 8. Conservación in situ Cada Parte Contratante, en la medida de lo posible y según proceda:

• a)Establecerá un sistema de áreas protegidas o áreas donde haya que tomar medidas especiales para conservar la diversidad biológica” (ver Convenio sobre diversidad biológica y anexos [Río de Janeiro, 1992], aprobado mediante Ley No. 7416 del 30 de junio de 1994).

“ARTÍCULO 19.- Se deberán desarrollar estrategias nacionales para ejecutar los planes de Sistemas de Áreas Silvestres Protegidas, siendo garantes de funciones económicas básicas para el desarrollo local, regional y global, y del fortalecimiento de la presencia institucional en las áreas mencionadas, para lo cual se gestionará financiamiento nacional e internacional para su efectiva ejecución” (ver Convenio para la conservación de la biodiversidad y protección de áreas silvestres prioritarias en América Central, aprobado mediante ley No. 7433 del 14 de setiembre de 1994).

“ARTÍCULO 42.- Delimitación de zonas protegidas El Ministerio del Ambiente y Energía, en coordinación con las instituciones competentes, podrá delimitar zonas de protección de determinadas áreas marinas, costeras y humedales, las cuales se sujetarán a planes de ordenamiento y manejo, a fin de prevenir y combatir la contaminación o la degradación de estos ecosistemas” (ver Ley orgánica del ambiente, No. 7554 del 04 de octubre de 1995).

“i) Área silvestre protegida: Espacio, cualquiera que sea su categoría de manejo, estructurado por el Poder Ejecutivo para conservarlo y protegerlo, tomando en consideración sus parámetros geográficos, bióticos, sociales y económicos que justifiquen el interés público” (ver artículo 3 de la Ley forestal, No. 7575 del 13 de febrero de 1996).

“ARTÍCULO 61.- Protección de las áreas silvestres protegidas El Estado debe poner atención prioritaria a la protección y consolidación de las áreas silvestres protegidas estatales que se encuentran en las Áreas de Conservación. Para estos efectos, el Ministerio de Ambiente y Energía en coordinación con el Ministerio de Hacienda, deberá incluir en los presupuestos de la República, las transferencias respectivas al fideicomiso o los mecanismos financieros de áreas protegidas para asegurar, al menos, el personal y los recursos necesarios que determine el Sistema Nacional de Áreas de Conservación para la operación e integridad de las áreas silvestres protegidas de propiedad estatal y la protección permanente de los parques nacionales, las reservas biológicas y otras áreas silvestres protegidas propiedad del Estado” (ver Ley de biodiversidad, No. 7788 del 30 de abril de 1998).

“35. Plan de manejo en un área silvestre: Conjunto de normas técnicas y científicas que regulan las actividades por desarrollar en el área silvestre y su entorno” (ver artículo 2 de la Ley de pesca y acuicultura, No. 8436 del 01 de marzo de 2005).

“p) Plan general de manejo: Es el instrumento de planificación que permite orientar la gestión de un área silvestre protegida hacia el cumplimiento de sus objetivos de conservación a largo plazo. Se fundamenta en líneas de acción estratégicas a mediano plazo y en objetivos de manejo para los elementos naturales y culturales incluidos dentro del área, así como en la relación de estos últimos con su entorno socio ambiental. Es la base para el desarrollo de otros instrumentos de planificación y reglamentación de las Áreas Silvestres Protegidas” (ver artículo 3 del Reglamento a la ley de biodiversidad, Decreto Ejecutivo No. 34433 del 11 de marzo de 2008; los subrayados en los textos anteriores no son de los originales).

Vista la información que contienen todas esas normas, no es admisible la contestación que en este asunto dio el Ministro de Ambiente, Energía y Telecomunicaciones (folio 87), cuando afirma que “la legislación es clara, la Ley de la Zona Marítima Terrestre establece que los Manglares forman parte de la Zona Pública de la ZMT, por otro lado desde 1977 se declaran como Reservas Forestales todos los manglares del territorio nacional, por lo tanto los manglares de Golfo Dulce están declarados como Áreas Silvestres Protegidas”. De esa manifestación no es aceptable, concretamente, que todos los manglares (que son zona pública), están declarados como áreas silvestres protegidas. Esto por cuanto, según se desprende de la regulación que se ha consignado, se requiere de una serie de requisitos y elementos científicos, técnicos, jurídicos, administrativos y presupuestarios, para crear esas áreas (…)” (el destacado fue suplido).

Incluso, recientemente, de forma unánime, este Tribunal dictó la sentencia nro. 2022022606 de las 13:10 horas del 28 de setiembre de 2022, en la que declaró la inconstitucionalidad de la ley nro. 9348 del 8 de febrero de 2016, denominada ‘Ley del Refugio Nacional de Vida Silvestre Ostional’, debido a la falta de sustento técnico:

“-La ley impugnada, en sus distintas normas, desafectan y reducen el grado de protección del Refugio de Vida Silvestre Ostional: Tal como apunta la parte accionante, el legislador estableció varias disposiciones que implican una desafectación del área a proteger y reducen el grado de protección que le había sido conferido. Lo anterior, sin que ello haya sido justificado en un estudio técnico, como reiteradamente lo ha señalado este Tribunal. El artículo 5, por ejemplo, cambió su naturaleza jurídica de un refugio de naturaleza meramente pública a uno mixto, estableciendo que, a partir de ese momento, ya no solo estaría conformado por terrenos propiedad del Estado, sino además, por terrenos propiedad de particulares que hayan sido inscritos en el registro respectivo y, aunque la norma advierte que ello ocurrirá siempre que ambas formas de propiedad sean sometidas a usos compatibles con sus objetivos de conservación y protección ambiental, bajo un enfoque integral de conservación, lo cierto es que en artículos posteriores autoriza actividades para las cuales no consta un estudio técnico previo, que haya determinado que, a través de estas, no se vaya a afectar el fin para el cual este fue constituido.

El artículo 8 aquí cuestionado, dispone que, en “las áreas de naturaleza demanial del Refugio podrán otorgarse concesiones a ocupantes actuales”, con excepción de los que estén en un área de protección de quince metros alrededor de los esteros y manglares del Refugio; bosques, terrenos forestales, ecosistemas de humedales, los cincuenta metros de la zona pública de la zona marítimo terrestre contados a partir de la pleamar ordinaria, las áreas que quedan al descubierto durante la marea baja, islotes, peñascos y demás áreas pequeñas y formaciones naturales que sobresalgan del mar. Ese numeral indica que el Área de Conservación puede otorgar concesiones cuando en el estudio que se realice para el caso concreto se determine técnicamente que no son incompatibles con los objetivos y los alcances establecidos en el Plan general de manejo, para los siguientes usos potencialmente compatibles con los objetivos de conservación del Refugio: “a) Uso agropecuario sostenible de pequeña escala. b) Uso habitacional y habitacional recreativo. c) Cabinas y albergues de ecoturismo. d) Uso comercial destinado a sustentar servicios básicos de apoyo a las comunidades y visitantes. e) Infraestructura para investigaciones científicas o culturales y capacitación. f) Instalaciones para servicios comunales y de bienestar social. g) Investigación y operación de proyectos comunales.” Y el artículo 12 incluso establece un pago de cánones para el ejercicio de esas actividades.

Es decir, con esas disposiciones no solo pierde el refugio parte de su territorio al cambiar su naturaleza y establecer que existirán terrenos de naturaleza privada dentro de estos, sino que, además, sin un estudio técnico que verifique los eventuales impactos en el ambiente de previo, como lo exigiría el principio precautorio, son autorizadas actividades diversas a las establecidas por la Ley Forestal para este tipo de refugios de naturaleza mixta (por ejemplo: el uso agropecuario, habitacional, y comercial contemplado en el artículo 8 impugnado). El ordinal 9 de la misma ley, también innova autorizando permisos de uso de suelo a instituciones públicas para brindar servicios públicos que resultan ajenos al ámbito de protección, sin que exista un estudio técnico que, de previo, igualmente justifique porqué no solo son desafectadas ciertas áreas de protección, sino también ha reducido el grado de protección ambiental de estas, pues anteriormente todas esas actividades no eran permitidas, y ahora se autorizan en la ley, sin previamente acreditar que no ocasionarán un daño en el ambiente.

En similar sentido, el numeral 10 de esta ley, abre la posibilidad al Área de Conservación Tempisque para otorgar permisos de uso de suelo dentro del Refugio a universidades privadas, centros o institutos de investigación y organizaciones comunales locales, para investigación y desarrollo de proyectos comunales. Además, en estos dos numerales no se excluyen las áreas que sí se excluyen para el otorgamiento de concesión, tal y como acertadamente lo afirma la Procuraduría General de la República en su informe. En efecto, no se salvaguarda de la zona pública los humedales, área de bosque, forestales o con esa actitud y demás zonas exceptuadas en los artículos 8 y 11 de la ley, lo que quebranta los numerales 50 y 89 de la Carta Fundamental. Ciertamente la ley impugnada establece en el ordinal 11 que se debe emitir un Plan General de Manejo previo al otorgamiento de concesiones en el Refugio, que determine que los usos estuvieran orientados a los objetivos de conservación del Refugio, con las limitantes y potencialidades técnicas ambientales de cada zona o subzona; sin embargo, dadas las particularidades de este caso, donde se reitera, ya existía una protección normativa mayor y se desafectó no solo parte de su territorio, con propósitos incluso diversos a la tutela ambiental, sino que también fue disminuido el grado de tutela que tenía respecto de algunas áreas, a fin de resolver un problema de ocupación dentro de esta área, lo cual es ajeno a su fin, el origen de la reforma legal requería estar sustentada en un estudio técnico que justificara tales cambios y compensara la tutela ambiental existente, conforme ya lo había indicado este Tribunal, respecto a este mismo refugio, al pronunciarse mediante consulta legislativa sobre el proyecto de ley nro. 18.148, “Ley de Territorios Costeros Comunitarios”, en la sentencia nro. 2013-10158 de las 15:46 horas del 24 de julio de 2013. No obstante, nuevamente se echa de menos.

-Ausencia de respaldo técnico: En el expediente legislativo No. 18939 que dio origen a la Ley No. 9348 no se aprecia que se haya sido cumplido con el requisito de respaldo técnico, en los términos ya indicados por esta Sala en el voto mencionado del 2013-010158. Claramente, de la exposición de motivos del proyecto se extrae que, a ese momento, no tenían los informes técnicos de respaldo, cuando se indica: “Los estudios técnicos a los que hace referencia la Sala Constitucional se encuentran sumamente avanzados… Oportunamente serán presentados a la corriente legislativa.” Pese a que el Ministro de Ambiente indica en su informe que habrá un Plan General de Manejo, como un requisito previo para el otorgamiento de las concesiones, y que además habrá un estudio concreto en cada caso, ello no sustituye los estudios técnicos PREVIOS que deben existir como fundamento al proyecto de ley que en el fondo conlleva la reducción del Refugio de Vida Silvestre de Ostional.

Ello por cuanto dichos estudios no son una mera formalidad, ni pueden ser sustituidos por estudios posteriores o concretos, sino que, permitir usos de suelo, más allá de los relacionados con la conservación de un Refugio de Vida Silvestre, es desnaturalizar la razón de ser del refugio, reducir en todo caso el área del refugio, y con ello violentar el derecho al ambiente. Sobre lo indicado por el coadyuvante de que el informe técnico de la ley es el realizado por el Dr. Allan Astorga, denominado “Informe de Evaluación Ambiental Estratégica del Plan de Manejo Ostional” se debe indicar que esta Sala pudo observar dicho informe, y se concluye que claramente este no es el informe que justifica técnicamente la ley, básicamente por tres razones: la fecha del informe, la justificación y su contenido. Dicho informe data del 2009, el proyecto de ley se presentó en el 2013 y es aportado al expediente legislativo en junio del 2015.

Un informe técnico base de un proyecto de ley se debe presentar adjunto al proyecto de ley. Además, nótese que cuando esta Sala conoció del asunto en consulta, en el voto del 2013, nada se dijo en ese momento sobre este informe técnico del 2009 como base del proyecto de ley. Por lo demás, la justificación de dicho informe no tiene relación con el proyecto, pues lo que se indica es que: Es un estudio base para la elaboración del Plan de Manejo del Refugio (“El objetivo del estudio es desarrollar una zonificación de Índices de Fragilidad Ambiental (IFA) para el Refugio Nacional de Vida Silvestre Ostional… con la finalidad de establecer una base técnica para el Plan de Manejo de este conjunto de importantes ecosistemas.”). Finalmente, su contenido no se refiere a lo que debería referirse un informe técnico que sustente un proyecto de ley que reduzca el nivel de protección de un refugio de vida silvestre, pues no se indica en concreto por qué se reduce, cómo se reduce ni cuáles medidas de compensación se establecen.

-La demanialidad ambiental supone un régimen especial de protección: La declaración de demanialidad por razones ambientales supone una esfera especial de protección, en la medida en que configura un régimen especial de dominio, regulado por normas intensas de derecho público y que procuran el resguardo del cumplimiento de una finalidad de tutela del derecho al ambiente sano y ecológicamente equilibrado. Atendiendo a dichas razones constitutivas y en aras de las bondades que subyacen en su dimensión teleológica, cualquier determinación de desafectación total o parcial, o bien, de recomposición de su naturaleza jurídica, exige e impone los debidos análisis técnicos que ponderen la variable ambiental en la toma de la decisión, como derivación de los principios de no regresión, progresividad del ambiente, precautorio, preventivo y pro-natura. La especial protección constitucional del ambiente impone un exhaustivo estudio de las razones que sustenten ese tipo de determinaciones, en el contexto de los diversos niveles que componen los ecosistemas, así como las relaciones del ambiente con el entorno antropológico y dentro de este, las incidencias sociales, económicas, entre otras.

De esa manera, la ausencia de ese tipo de rigor técnico en la variación de naturaleza del dominio público ambiental deja de lado y quebranta, aún por riesgo, el contenido sustancial de ese derecho. Lo mismo ha de advertirse en lo referente a la permisibilidad de la realización de actividades humanas dentro de esos espacios territoriales, sin la debida ponderación del impacto que aquellas pueden llegar a producir en el medio, para lo cual, es menester la consideración del régimen primario de uso del bien, la tipología de ecosistemas convergentes en esa área, la existencia o no de regímenes especiales de uso impuestos por normas jurídicas. En efecto, la variación de uso de un bien al que tradicionalmente se ha conferido un régimen de protección ambiental, precisa de las valoraciones de orden técnico sobre las consecuencias que esas nuevas incursiones antrópicas llegarán a producir en el ecosistema, así como si son congruentes con el medio, bajo un contexto de sostenibilidad ambiental.

Esto implica ponderar conductas permitidas, acciones y procedimientos correctivos, medidas de mitigación, acciones compensatorias, entre otra serie de consideraciones que se echan de menos en este expediente. Tal falencia, como se ha expuesto, supone lesiones de orden sustancial que esta Cámara no puede inadvertir si se entiende que el patrimonio público, desde el plano conceptual, dice del conjunto de bienes que por ley (o norma superior) se encuentran afectos a un uso y fin público. Si bien su régimen de uso no es totalmente incompatible con la explotación privativa por parte de terceros, previa habilitación administrativa expresa, lo cual, ha de ser regulado de manera expresa por fuente legal, cuando se trata de un demanio ambiental, la valoración de este marco de actividades permitidas exige de un análisis minucioso, cauteloso, técnico, atendiendo a las condiciones y características propias del ambiente, como bien jurídico tutelado y su innegable significancia para el ámbito de los derechos humanos contemporáneos y de generaciones futuras.

Es esa finalidad de protección la que impone el tipo de consideraciones especiales y de orden técnico al que se viene haciendo referencia, en procura de cumplir con la obligación constitucional de velar el derecho a un ambiente sano y ecológicamente equilibrado (…)” (el resaltado fue incorporado).

Así las cosas, queda en evidencia que esta Cámara especializada ha reiterado en múltiples pronunciamientos la importancia del principio de objetivación de la tutela ambiental, con el propósito de garantizar que las decisiones en materia ambiental tengan sustento en estudios científicos, con lo cual se condiciona o restringe la discrecionalidad de la Administración en tal materia. Sobre el particular, en relación con el ambiente natural y el urbano, se detalla en la mencionada sentencia nro. 2003003656 de las 14:43 horas del 7 de mayo de 2003: “Esta última norma da directrices para que las autoridades públicas impulsen la protección del medio ambiente, entendido esto de una manera integral, sea, no entendido en su sentido tradicional que se ha limitado al ámbito del recurso natural, lo que comúnmente se conoce como "lo verde", en tanto se ha entendido que comprende los recursos naturales (bosques, agua, aire, minerales, flora y fauna, etc.), sino también en lo relativo al entorno en que se vive, que comprende, no sólo a las bellezas escénicas de la naturaleza, como el paisaje, sino también todo lo relativo a las ciudades y conglomerados urbanos y rurales, es decir, al concepto de lo urbano.

Bien puede afirmarse que se trata de dos aspectos complementarios de una realidad, como las dos caras de una misma moneda: el ambiente natural y el ambiente urbano. Es así como se pretende un ambiente más humano, es decir, un ambiente que no sólo sea sano y ecológicamente equilibrado, sino también como un referente simbólico y dador de identidad nacional, regional o local. Así, el derecho fundamental a tener un ambiente sano y ecológicamente equilibrado -desarrollado ampliamente por la jurisprudencia constitucional- comprenderá, tanto sus partes naturales, como sus partes artificiales, entendiéndose por tales, el hábitat humano, lo construido por el hombre, sea, lo urbano, de manera que se mantengan libres de toda contaminación, tanto por los efectos y repercusiones que puede tener en la salud de las personas y demás seres vivientes, como por el valor intrínseco del ambiente” (el resaltado fue añadido).

Con base en lo expuesto, se concluye que, en el sub examine, con la promulgación de la ley nro. 9892, una porción del área silvestre protegida ‘Isla San Lucas’ pasó de la categoría de manejo ‘refugio nacional de vida’ a la de ‘parque nacional’; empero, de los autos no se desprende que, con anterioridad a semejante alteración y ante la naturaleza particular de la isla San Lucas, el Parlamento se hubiera respaldado en estudios científicos previos debidamente sustentados que desde un punto de vista técnico y objetivo justificaran la decisión legislativa. Máxime que, tal y como se indicó ut supra, existe patrimonio cultural en la isla que puede resultar afectado debido al cambio de categoría de manejo que operó.

Nótese que, con la ley aquí impugnada, se produjo una modificación en el régimen del área silvestre protegida de la isla San Lucas que lleva consigo una zonificación diferenciada (aspecto novedoso con respecto al régimen de protección anterior). Es decir, no se trata simplemente de un cambio en el nombre del área, sino que, de acuerdo con el artículo 1 de la ley nro. 9892, se le agregan condiciones específicas: “además de su condición de área silvestre protegida, será patrimonio histórico - arquitectónico y zona de aprovechamiento turístico sostenible, en las áreas específicas que se determinan en la presente ley”. Como se puede observar, la isla San Lucas ahora tiene zonas de manejo diferenciado; empero, no se constata algún estudio técnico que demuestre que no va a existir alguna afectación ambiental que haga necesaria una compensación equivalente. Tampoco se aprecia un fundamento técnico para respaldar las diferencias de manejo de la isla San Lucas con respecto al régimen general de áreas silvestres protegidas.

Todo lo anterior, en realidad, constituye una desmejora en el nivel de tutela ambiental de la isla, ya que no hay criterios técnicos que justifiquen la disminución operada en el refugio de vida silvestre ni la zonificación propuesta en el nuevo parque nacional. Precisamente, no se observa el sustento técnico del fraccionamiento dispuesto que demuestre que no se generaron o que no se van a causar daños en la totalidad del ecosistema o en la protección íntegra de la isla.

Es menester señalar que los refugios nacionales de vida silvestre se centran en la conservación, investigación, incremento y el manejo de la flora y la fauna silvestres, en especial de aquellas que se encuentran en vías de extinción. Según la UICN, esta categoría de manejo se centra en la protección de hábitats o especies concretas, es decir, su gestión está focalizada en hábitats o especies específicos y más reducidos. Además, en el caso de los refugios nacionales de vida silvestre estatales ‑como la isla San Lucas‑, solo pueden efectuarse las actividades definidas en el plan de manejo correspondiente, previo examen de las evaluaciones de impacto ambiental pertinente y, de acuerdo con el ordinal 70 del Reglamento a la Ley de Biodiversidad, “únicamente podrá desarrollarse labores de investigación, capacitación y ecoturismo”.

Sobre el particular, el decreto ejecutivo nro. 32633 del 10 de marzo de 2005 ‘Reglamento a la Ley de Conservación de la Vida Silvestre para Pesca y Refugios Nacionales de Vida Silvestre’ define qué actividades se pueden desarrollar en los refugios nacionales de vida silvestre de propiedad estatal, de acuerdo con los principios de desarrollo sostenible previstos en el plan de manejo:

“Artículo 151.-El MINAE a través del SINAC, podrá autorizar dentro de los límites de los Refugios de Propiedad Mixta, y Refugios de Propiedad Privada, de conformidad con los principios de desarrollo sostenible planteados en los planes de manejo, las siguientes actividades:

• a)Uso agropecuario.
• b)Uso habitacional.
• c)Vivienda turística recreativa.
• d)Desarrollos turísticos, incluye hoteles, cabinas, albergues u otros que realicen actividades similares.
• e)Uso comercial (restaurantes, tiendas, otros).
• f)Extracción de materiales de canteras (arena y piedra).
• g)Investigaciones cientí.cas (sic) o culturales.
• h)Otros fines de interés público o social y cualquier otra actividad que el SINAC considere pertinente compatibles con las políticas de Conservación y desarrollo sustentable”.

Por su parte, los parques nacionales poseen otro tipo de cualidades que justifican su manejo diferenciado. Al respecto, recuérdese que la UICN los conceptualiza como “grandes áreas naturales o casi naturales establecidas para proteger procesos ecológicos a gran escala, junto con el complemento de especies y ecosistemas característicos del área, que también proporcionan la base para oportunidades espirituales, científicas, educativas, recreativas y de visita que sean ambiental y culturalmente compatibles”. En ese sentido, como se indicó ut supra, la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ estatuye que los parques nacionales son puestos bajo la vigilancia oficial -artículo 1°-, que los límites de esta categoría de manejo de áreas silvestres protegidas no pueden ser alterados sino por medio de la autoridad legislativa, así como que los Gobiernos Contratantes deben proveer las facilidades “para el solaz y la educación del público, de acuerdo con los fines que persigue esta Convención” -ordinal 3-.

En adición, si bien en los parques nacionales se procura la protección y conservación de las bellezas naturales y la biodiversidad, no menos cierto es que también se promueve el disfrute por parte del público y se permite el otorgamiento restringido de ciertas concesiones y permisos, en los términos previstos en el ordinal 12 de la Ley del Servicio de Parques Nacionales. Además, en esta categoría de manejo se prohíbe la explotación de las riquezas existentes con fines comerciales.

Asimismo, el numeral 8 de la Ley del Servicio de Parques Nacionales contiene una serie de prohibiciones a los visitantes de los parques nacionales, a saber:

“ARTÍCULO 8º.- Dentro de los parques nacionales, queda prohibido a los visitantes:

• 1)Talar árboles y extraer plantas o cualquier otro tipo de productos forestales.
• 2)Cazar o capturar animales silvestres, recolectar o extraer cualquiera de sus productos o despojos.
• 3)Cazar tortugas marinas de cualquier especie; recolectar o extraer sus huevos o cualquier otro producto o despojo.
• 4)Rayar, marcar, manchar o provocar cualquier tipo de daño o deterioro a las plantas, los equipos o las instalaciones.
• 5)Pescar deportiva, artesanal o industrialmente, salvo el caso previsto en el artículo diez.
• 6)Recolectar o extraer corales, conchas, rocas o cualquier otro producto o desecho del mar.
• 7)Recolectar o extraer rocas, minerales, fósiles o cualquier otro producto geológico.
• 8)Portar armas de fuego, arpones y cualquier otro instrumento que pueda ser usado para cacería.
• 9)Introducir animales o plantas exóticas.
• 10)Pastorear y abrevar ganado o criar abejas.
• 11)Provocar cualquier tipo de contaminación ambiental.
• 12)Extraer piedras, arenas, grava o productos semejantes.
• 13)Dar de comer o beber a los animales.
• 14)Construir líneas de conducción eléctrica o telefónica, acueductos o carreteras o vías férreas.
• 15)Realizar cualquier tipo de actividad comercial, agrícola o industrial”.

Por otra parte, en junio de 2020, el SINAC emitió el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas, en el que se hizo referencia, entre otros, a: i) características generales del refugio; ii) un diagnóstico socioeconómico-ambiental-cultural; y iii) marco estratégico para la gestión del área silvestre protegida. Ahora, si bien en el referido plan se efectuó un análisis actualizado de las fortalezas, debilidades, amenazas y oportunidades enfrentadas en la isla San Lucas, no menos cierto es que ese estudio se llevó a cabo a fin de establecer el manejo del Refugio Nacional de Vida Silvestre Isla San Lucas, no así para determinar la procedencia o no de que una parte de su superficie (que incluye una zona de patrimonio cultural) pasara a ser un parque nacional con una ‘zona turística’ con manejo diferenciado . Es decir, no constan estudios técnicos que sustenten los alcances de la ley en esos términos.

En ese sentido, verbigracia, en el aludido plan se establecieron los elementos focales de manejo, los cuales “consisten en un proceso de selección de un reducido número de recursos de la biodiversidad que serán prioridad para la gestión del Refugio Nacional de Vida Silvestre Isla San Lucas. Los elementos focales de manejo orientan a la administración del Refugio en la asignación y prioridad de recursos”. De este modo, los elementos focales de manejo considerados en el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas -a saber, i) remanente de bosque tropical seco; ii) recurso marino-costero; iii) la infraestructura del antiguo Presidio declarado Patrimonio arquitectónico; y iv) los sitios arqueológicos- son los que guían la asignación de recursos en esa área silvestre protegida.

Ello resulta de importancia, por cuanto refleja que el estudio en cuestión se enfocó en las características y fines de conservación de un área determinada de manejo, a saber, el Refugio Nacional de Vida Silvestre Isla San Lucas, no así en la viabilidad técnica y ambiental de que un sector de su espacio geográfico pasara a ser gestionado bajo otra categoría de manejo, con sus especificidades de carácter diferenciador, como lo es un parque nacional, ni tampoco examinó las implicaciones que esa modificación genera sobre el patrimonio cultural de la isla.

Incluso, llama la atención que en el referido Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas se consignó:

“6. Categoría de manejo del ASP La categoría asignada a esta ASP, se ajusta totalmente a sus condiciones geografías, ecológicas, ambientales y sociales. La normativa vigente tanto Internacional como Nacional que (Decreto Ejecutivo 34433 Gaceta 68 del 8 de abril del 2008) indican que los Refugios Nacionales de Vida Silvestre: Áreas geográficas que poseen ecosistemas terrestres, marinos, marino-costeros, de agua dulce o una combinación de estos. Sus fines principales serán la conservación, la investigación, el incremento y el manejo de la flora y la fauna silvestres, en especial de las que se encuentren en vías de extinción. Para efectos de clasificarlos, existen tres clases de refugios nacionales de vida silvestre: e.1) Refugios de propiedad estatal. Son aquellos en los que las áreas declaradas como tales pertenecen en su totalidad al Estado y son de dominio público. Su administración corresponderá en forma exclusiva al SINAC.

Sus principales objetivos son: la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentren declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. Por tratarse del patrimonio natural del Estado, únicamente podrán desarrollarse labores de investigación, capacitación y ecoturismo. e.2) Refugios de propiedad privada. Son aquellos en los cuales las áreas declaradas como tales pertenecen en su totalidad a particulares. Su administración corresponderá a los propietarios de los inmuebles y será supervisada por el SINAC. Sus principales objetivos son: la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentran declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas.

En los terrenos de los refugios de propiedad privada, sólo podrán desarrollarse actividades productivas de conformidad con lo que estipula el Reglamento de la Ley de Conservación de la Vida Silvestre, Decreto Ejecutivo N.º 32633-MINAE, del 10 de marzo del 2005, publicado en La Gaceta N.º 180 del 20 de setiembre del 2005. e.3) Refugios de propiedad mixta. Son aquellos en los cuales las áreas declaradas como tales pertenecen en parte al Estado y en parte a particulares. Sus principales objetivos son: la conservación, la investigación y el manejo de la flora y la fauna silvestres, en especial de aquellas especies que se encuentran declaradas oficialmente por el país como en peligro de extinción o con poblaciones reducidas, así como las especies migratorias y las especies endémicas. Su administración será compartida entre los propietarios particulares y el SINAC, de manera que en los terrenos que sean propiedad del Estado sólo podrán desarrollarse las actividades indicadas previamente para los refugios de propiedad estatal, indicadas en el inciso i) mientras que en los terrenos de propiedad privada podrán desarrollarse las actividades señaladas para los refugios de propiedad privada indicadas en el inciso ii), respetando los criterios y requisitos respectivos.

Analizada la normativa vigente, los objetivos de creación del ASP, contexto geográfico, ecológico, zonificación, oportunidades de desarrollo sostenible y socioeconómico puede concluirse que el área silvestre declarada como refugio nacional está bien categorizada” (el énfasis fue adicionado).

Por ende, el Plan General de Manejo del Refugio Nacional de Vida Silvestre Isla San Lucas de junio de 2020 no es un estudio técnico adecuado para fundamentar la procedencia del cambio de categoría de una superficie del refugio aludido a parque nacional, por cuanto no satisface los criterios establecidos para que los estudios científicos puedan validar la variación de categoría de manejo, a saber, que sean previos, suficientes, individualizados y debidamente sustentados a fin de determinar razonablemente que no se causará daño ni se pondrá en peligro al ambiente y, en este caso particular, el patrimonio cultural.

En relación con el sub lite, la UICN expuso a este Tribunal que: “en el caso del Parque Nacional San Lucas, con el cambio de categoría se denota un interés de desarrollar el uso turístico más que de fortalecer la protección de valores naturales y culturales del sitio. Adicionalmente, la falta de estudios y justificaciones técnicas para el cambio de categoría y para la inserción de actividades turísticas dentro del sitio. Como se puede ver en cuadro de abajo, los usos permitidos en un Refugio de Vida Silvestre y un Parque Nacional difieren en que en el refugio se permite actividades de manejo y uso directo de la biodiversidad, construcción de obra pública e infraestructura turística y recreativa. Estas actividades en el parque nacional no son permitidas (…)”.

Llegado a este punto, dado que lo expuesto incide en el principio precautorio o in dubio pro natura, conviene clarificar su noción. Primeramente, en la sentencia nro. 2004002473 de las 8:32 horas del 12 de marzo de 2004 se conceptualizó así:

“IV.- PRINCIPIO PRECAUTORIO DEL DERECHO AMBIENTAL. Uno de los principios rectores del Derecho Ambiental lo constituye el precautorio o de evitación prudente. Este principio se encuentra recogido en la Conferencia de las Naciones Unidas sobre el Medio Ambiente y el Desarrollo o Declaración de Río, la cual literalmente indica “Principio 15.- Con el fin de proteger el medio ambiente, los Estados deberán aplicar ampliamente el criterio de precaución conforme a sus capacidades. Cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente”. En el ordenamiento jurídico interno la Ley de Biodiversidad (No. 7788 del 30 de abril de 1998), en su artículo 11 recoge como parámetros hermenéuticos los siguientes principios: “1.- Criterio preventivo: Se reconoce que es de vital importancia anticipar, prevenir y atacar las causas de la pérdida de biodiversidad o sus amenazas. 2.- Criterios precautorio o indubio (sic) pro natura: Cuando exista peligro o amenaza de daños graves o inminentes a los elementos de la biodiversidad y al conocimiento asociado con estos, la ausencia de certeza científica no deberá utilizarse como razón para postergar la adopción de medidas eficaces de protección”.

En el Voto de esta Sala No. 1250-99 de las 11:24 horas del 19 de febrero de 1999 (reiterado en los Votos Nos. 9773-00 de las 9:44 horas del 3 de noviembre del 2000, 1711-01 de las 16:32 horas del 27 de febrero del 2001 y 6322-03 de las 14:14 horas del 3 de julio del 2003) este Tribunal estimó lo siguiente: “(...) La prevención pretende anticiparse a los efectos negativos, y asegurar la protección, conservación y adecuada gestión de los recursos. Consecuentemente, el principio rector de prevención se fundamenta en la necesidad de tomar y asumir todas las medidas precautorias para evitar contener la posible afectación del ambiente o la salud de las personas. De esta forma, en caso de que exista un riesgo de daño grave o irreversible –o una duda al respecto-, se debe adoptar una medida de precaución e inclusive posponer la actividad de que se trate. Lo anterior debido a que en materia ambiental la coacción a posteriori resulta ineficaz, por cuanto de haberse producido ya las consecuencias biológicas socialmente nocivas, la represión podrá tener una trascendencia moral, pero difícilmente compensará los daños ocasionados en el ambiente”.

Posteriormente, en el Voto No. 3480-03 de las 14:02 horas del 2 de mayo del 2003, este Tribunal indicó que “Bien entendido el principio precautorio, el mismo se refiere a la adopción de medidas no ante el desconocimiento de hechos generadores de riesgo, sino ante la carencia de certeza respecto de que tales hechos efectivamente producirán efectos nocivos en el ambiente”. Para casos como el de estudio, el principio precautorio o de indubio (sic) pro natura, supone que cuando no existan estudios o informes efectuados conforme a las regla unívocas y de aplicación exacta de la ciencia y de la técnica que permitan arribar a un estado de certeza absoluta acerca de la inocuidad de la actividad que se pretende desarrollar sobre el medio ambiente o éstos (sic) sean contradictorios entre sí, los entes y órganos de la administración central y descentralizada deben abstenerse de autorizar, aprobar o permitir toda solicitud nueva o de modificación, suspender las que estén en curso hasta que se despeje el estado dubitativo y, paralelamente, adoptar todas las medidas tendientes a su protección y preservación con el objeto de garantizar el derecho a un ambiente sano y ecológicamente equilibrado. En esencia, una gestión ambiental segura pasa por proteger el recurso antes de su degradación”.

Tal criterio ha sido reiterado en múltiples pronunciamientos; verbigracia, en la sentencia nro. 2019012579 de las 13:20 horas del 5 de julio de 2019:

“… el principio precautorio o de in dubio pro natura, supone que cuando no existan estudios o informes efectuados conforme a las reglas unívocas y de aplicación exacta de la ciencia y de la técnica que permitan arribar a un estado de certeza absoluta acerca de la inocuidad de la actividad que se pretende desarrollar sobre el medio ambiente, los entes y órganos públicos deben abstenerse de autorizar, aprobar o permitir toda solicitud nueva o de modificación, suspender las que estén en curso hasta que se despeje el estado dubitativo y, paralelamente, adoptar todas las medidas tendientes a su protección y preservación con el objeto de garantizar el derecho a un ambiente sano y ecológicamente equilibrado (…)”. (Ver en igual sentido, las sentencias nros. 2019012549 de 13:20 horas del 5 de julio de 2019, y 2012016866 de las 14:30 horas del 4 de diciembre de 2012, entre muchas otras).

Ahora, bajo una mejor ponderación, los suscritos magistrados estimamos ineludible aclarar la noción del principio precautorio o in dubio pro natura en varios sentidos.

Primeramente, no se debe confundir el principio preventivo con el precautorio, toda vez que poseen particularidades que los diferencian entre sí, lo cual quedó reflejado en la sentencia nro. 2021024807 de las 9:20 horas del 5 de noviembre de 2021, en la que esta Sala detalló: “En este orden de ideas, la doctrina especializada ha señalado que el principio preventivo demanda que, cuando haya certeza de posibles daños al ambiente, la actividad afectante deba ser prohibida, limitada, o condicionada al cumplimiento de ciertos requerimientos. En general, este principio aplica cuando existen riesgos claramente definidos e identificados al menos como probables; asimismo, tal principio resulta útil cuando no existen informes técnicos o permisos administrativos que garanticen la sostenibilidad de una actividad, pero hay elementos suficientes para prever eventuales impactos negativos. Por otra parte, el principio precautorio señala que, cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente.

De lo anterior, se advierte que el principio parte de una incertidumbre científica razonable en conjunto con la amenaza de un daño ambiental grave e irreversible. En términos generales, una diferencia relevante entre el principio preventivo y el precautorio radica en el nivel de conocimiento y certeza de los riesgos que una actividad u obra provoque. Mientras que en el primero existe tal certeza, en el segundo lo que se advierte es un estado de duda resultado de informaciones científicas o estudios técnicos (…)” (la negrita fue suplida).

De segundo, el principio precautorio debe ser entendido justamente como lo contempla el principio XV de la Declaración de Rio sobre el Medio Ambiente y el Desarrollo: “Cuando haya peligro de daño grave o irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente”. Es decir, no se trata de la exigencia de tener estudios científicos para arribar a la ‘certeza absoluta’ de la inocuidad de una actividad para con el ambiente (en tesis de principio una seguridad total difícilmente es alcanzable), sino, más bien, de que, aunque el peligro de un daño grave o irreversible al ambiente no esté totalmente asegurado, tal incertidumbre jamás justifique o excuse que se postergue la ejecución de medidas efectivas para impedir la degradación del ambiente. Al respecto, nótese, por un lado, que no se trata de cualquier amenaza ‑plausiblemente debe involucrar un peligro serio‑, y, por otro, que la medida demanda un uso eficaz y eficiente de los recursos empleados.

En el sentido expuesto, aun cuando el principio precautorio está ligado a un cierto nivel de incerteza científica, ello no implica que se pueda emplear de forma irrestricta bajo el argumento de que cualquier actividad podría generar daños al ambiente, lo cual desnaturalizaría su razón de ser, sino que es menester que se cuente con cierto grado de identificación de los peligros de un daño grave o irreversible que se podría generar, cuya determinación varía en atención de las particularidades propias del caso concreto. Así, cuando se está ante una situación que exige la aplicación del principio precautorio, los entes y órganos públicos deben abstenerse de autorizar, aprobar o permitir toda solicitud nueva o de modificación que razonablemente implique un riesgo grave; incluso, se encuentran obligados a suspender las actividades que se encontrasen en curso, asimismo en paralelo tienen que adoptar con eficiencia todas las medidas requeridas para la preservación de un ambiente sano y ecológicamente equilibrado.

El referido principio se recoge de igual modo en una fuente jurídica del hard law, toda vez que el principio 3 de la Convención Marco de las Naciones Unidas sobre el Cambio Climático ‑ratificada por Costa Rica mediante la ley nro. 7414 del 13 de junio de 1994 y por todos los estados miembros de la OEA- estatuye:

“3. Las Partes deberían tomar medidas de precaución para prever, prevenir o reducir al mínimo las causas del cambio climático y mitigar sus efectos adversos. Cuando haya amenaza de daño grave o irreversible, no debería utilizarse la falta de total certidumbre científica como razón para posponer tales medidas, teniendo en cuenta que las políticas y medidas para hacer frente al cambio climático deberían ser eficaces en función de los costos a fin de asegurar beneficios mundiales al menor costo posible. A tal fin, esas políticas y medidas deberían tener en cuenta los distintos contextos socioeconómicos, ser integrales, incluir todas las fuentes, sumideros y depósitos pertinentes de gases de efecto invernadero y abarcar todos los sectores económicos. Los esfuerzos para hacer frente al cambio climático pueden llevarse a cabo en cooperación entre las Partes interesadas” (el destacado fue incorporado).

El principio precautorio también se encuentra previsto en el Convenio de Estocolmo sobre Contaminantes Orgánicos Persistentes, el cual se encuentra ratificado por 32 Estados Miembros de la OEA, entre ellos, Costa Rica ‑véase ley nro. 8538 del 23 de agosto de 2006‑, en la que se lee:

“ARTÍCULO 1 Objetivo Teniendo presente el principio de precaución consagrado en el principio 15 de la Declaración de Río sobre el Medio Ambiente y el Desarrollo, el objetivo del presente Convenio es proteger la salud humana y el medio ambiente frente a los contaminantes orgánicos persistentes (…)”.

Igualmente, tal principio está contemplado en otro instrumento del derecho internacional de los derechos humanos, como el Convenio sobre la Diversidad Biológica ratificado por 34 Estados Miembros de la OEA, incluido Costa Rica, por medio de la ley nro. 7416 del 30 de junio de 1994, en cuyo preámbulo se establece: “(…) Observando que es vital prever, prevenir y atacar en su fuente las causas de reducción o pérdida de la diversidad biológica. Observando también que cuando exista una amenaza de reducción o pérdida sustancial de la diversidad biológica no debe alegarse la falta de pruebas científicas inequívocas como razón para aplazar las medidas encaminadas a evitar o reducir al mínimo esa amenaza (…)”.

En consonancia con la referida normativa vigente en el país, la Corte Interamericana de Derechos Humanos también se refirió al principio precautorio en la OC 23/17 del 15 de noviembre de 2017:

“180. (…) Por tanto, esta Corte entiende que, los Estados deben actuar conforme al principio de precaución, a efectos de la protección del derecho a la vida y a la integridad personal, en casos donde haya indicadores plausibles que una actividad podría acarrear daños graves e irreversibles al medio ambiente, aún en ausencia de certeza científica. Por tanto, los Estados deben actuar con la debida cautela para prevenir el posible daño. En efecto, en el contexto de la protección de los derechos a la vida y a la integridad personal, la Corte considera que los Estados deben actuar conforme al principio de precaución, por lo cual, aún en ausencia de certeza científica, deben adoptar las medidas que sean “eficaces” para prevenir un daño grave o irreversible” (el resaltado fue añadido).

Posterior a tal resolución y por medio de una sentencia, en Comunidades Indígenas miembros de la Asociación lhaka Honhat (nuestra tierra) vs. Argentina, la Corte IDEH se pronunció el 6 de febrero de 2020 de esta forma: “el derecho a un medio ambiente sano “debe considerarse incluido entre los derechos [...] protegidos por el artículo 26 de la Convención Americana”, dada la obligación de los Estados de alcanzar el “desarrollo integral” de sus pueblos, que surge de los artículos 30, 31, 33 y 34 de la Carta”. De alta significación, se debe subrayar que, en este pronunciamiento, la Corte IDH remite a la opinión consultiva nro. OC-23/17 con la finalidad de desarrollar el contenido y alcance de tal derecho, merced a lo cual las consideraciones jurídicas de la última lógicamente han venido a alcanzar la obligatoriedad jurídica propia de una sentencia. En tal sentido, el órgano jurisdiccional internacional reitera “que el derecho a un medio ambiente sano “constituye un interés universal” y “es un derecho fundamental para la existencia de la humanidad”, y que “como derecho autónomo [...] protege los componentes del [...] ambiente, tales como bosques, mares, ríos y otros, como intereses jurídicos en sí mismos, aun en ausencia de certeza o evidencia sobre el riesgo a las personas individuales.

Se trata de proteger la naturaleza”, no solo por su “utilidad” o “efectos” respecto de los seres humanos, “sino por su importancia para los demás organismos vivos con quienes se comparte el planeta”. Lo anterior no obsta, desde luego, a que otros derechos humanos puedan ser vulnerados como consecuencia de daños ambientales”. Justamente, en el desarrollo de la conceptualización del derecho al ambiente, la Corte IDH con toda claridad detalla las obligaciones estatales frente a posibles daños al ambiente, tales como el deber de prevención, el principio de precaución, la obligación de cooperación y el acceso a la información.

En suma, la aplicación del principio precautorio implica que cuando existan indicadores de que cierta actividad plausiblemente podría ocasionar daños graves e irreversibles al ambiente, la falta de certeza o evidencia científica absoluta al respecto no exime de la obligación de adoptar todas aquellas medidas eficientes y eficaces para impedir una vulneración al ambiente. En virtud de la teoría de la Drittwirkung der Grundrechte, tal principio extiende su función orientadora a las conductas de sujetos de derecho tanto público como privado.

Aclarado lo anterior, y en atención a las particularidades de la isla San Lucas, se reitera que el cambio de categoría de manejo que operó con la ley aquí cuestionada inexorablemente acarrea implicaciones ambientales y culturales, por lo que la exigencia de criterios científicos debidamente sustentados resulta imprescindible. En otras palabras, para que resulte lógico y constitucionalmente procedente la modificación de categoría de manejo dada a la isla San Lucas (que no solo es un área silvestre protegida, sino también es considerada patrimonio cultural) debe haber suficiente justificación de orden técnico y científico, máxime que cada categoría de manejo tiene características biológicas, edáficas, hidrológicas, fisiográficas, ecológicas, climáticas y, en general, de relevancia ambiental, que le confiere una especificidad con relevancia distintiva.

En consideración a lo expuesto, en el sub lite no se constata un sustento científico, objetivo y razonable que justifique el cambio de categoría de manejo de una porción de la superficie terrestre del área silvestre protegida ‘Isla San Lucas’, ni mucho menos que examine las consecuencias ambientales y culturales de tal decisión. Esto resulta contrario a los principios precautorio, preventivo -en materia ambiental y de patrimonio cultural- y de objetivación de la tutela ambiental.

Por otro lado, cabe traer a colación la sentencia nro. 2013010540 de las 15:50 horas del 7 de agosto de 2013, en la que esta Sala precisó:

“6.4.- Violación del artículo 89 de la Constitución Política. Esta norma constitucional dispone en lo que interesa: “Entre los fines culturales de la República están: proteger las bellezas naturales...” Respecto de esta norma, el INCOPESCA afirma que no guarda relación alguna con la pesca de camarón por medio de redes de arrastre en los fondos marinos. Los accionantes, por su parte, estiman que la belleza escénica marina está siendo destruida y convertida en aguas turbias por la arremetida de la red de arrastre.

La Sala concuerda con esta última apreciación. La belleza natural no se limita al entorno que aprecian nuestros ojos ni mucho menos a la faz externa de la tierra. Belleza natural no se reduce a un concepto estético. Como bien lo ha puesto de relieve la Sala a través de una interpretación material y evolutiva en su jurisprudencia, el concepto de bellezas naturales utilizado por los constituyentes de 1949 está comprendido en la requerida protección al derecho a un ambiente sano y ecológicamente equilibrado:

“XIII.- (…) El término “bellezas naturales” era el empleado al momento de promulgarse la Constitución (7 de noviembre de 1949) que hoy se ha desarrollado como una especialidad del derecho; el derecho ambiental que reconoce la necesidad de preservar el entorno no como un fin cultural únicamente, sino como una necesidad vital de todo ser humano. En este sentido, el concepto de derecho al ambiente sano, supera los intereses recreativos o culturales que también son aspectos importantes de la vida en sociedad, sino que además constituye un requisito capital para la vida misma (...) (Sentencia 9193-2000 de las 16:28 horas del 17 de octubre de 2000).

El concepto de bellezas naturales guarda estrecha relación con el concepto de patrimonio natural. No por casualidad la norma se refiere al patrimonio histórico y artístico, de manera que la norma regula tres tipos de patrimonio esenciales para conservar la identidad de una Nación y su subsistencia física, cultural y social. Dentro del concepto de bellezas naturales se incluyen los recursos hidrobiológicos. La protección de las bellezas naturales comprende velar por la preservación del ambiente y los ecosistemas, porque si estos últimos son destruidos o severamente dañados, irremediablemente se ven perjudicadas las primeras. El concepto de bellezas naturales está estrechamente ligado a un modelo de desarrollo sostenible, respetuoso de las riquezas naturales y de nuestro patrimonio natural. La finalidad de la norma es proteger, conservar y desarrollar esas tres formas de patrimonio y sujetar la iniciativa privada a esa finalidad constitucional.

En virtud de lo expuesto, a diferencia de lo que considera el INCOPESCA en su informe, el deterioro de los ecosistemas marinos a causa de la pesca con red de arrastre y mientras no se cuenta con dispositivos para la disminución de la captura incidental (Bycatch Reduction Devices) que significativamente disminuyan la captura incidental (no todos tienen la misma efectividad y no basta con los que salvan a las tortugas), viola directamente el patrimonio natural protegido en el numeral 69 por medio del concepto de bellezas naturales” (el destacado fue incorporado).

Lo anterior implica en el sub iudice, que, ante la ausencia de los referidos estudios científicos, el cambio de categoría de manejo en una porción de la superficie de la isla San Lucas también conculca el ordinal 89 de la Carta Magna, puesto que esa modificación afecta un área silvestre protegida, cuya cobertura de protección constitucional se extiende a la obligación de salvaguardar las bellezas naturales, incluso frente amenazas y aplicando el principio de in dubio pro natura, así como de preservar el patrimonio cultural, conforme la jurisprudencia constitucional, término que engloba diversos tipos de patrimonio, como el histórico y el arquitectónico.

Con base en el expuesto, en el sub iudice, los suscritos magistrados consideramos que la ausencia de estudios científicos ambientales previos a cambiar la categoría de manejo en una parte del área silvestre protegida ‘Isla San Lucas’ atenta contra los principios precautorio, preventivo -en materia ambiental y de patrimonio cultural- y de objetivación de la tutela ambiental, así como lesiona los derechos fundamentales contemplados en los ordinales 50 y 89 de la Constitución Política.

IV.Sobre la alegada inconstitucionalidad de la ley nro. 9892 del 24 de agosto de 2020 por reducir la superficie del área silvestre protegida ‘Isla San Lucas’ sin estudios científicos previos.

De importancia para la resolución de este agravio se tiene que, mediante decreto ejecutivo nro. 34282-TUR-MINAE-C del 25 de enero de 2008 ´Rectifica, delimita y amplia los límites del Refugio Nacional de Vida Silvestre Isla San Lucas y declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla´ se modificaron los límites del Refugio Nacional de Vida Silvestre San Lucas. En ese sentido, en el ordinal 1º se reguló:

“Artículo 1º—Modifíquese el artículo 1 del Decreto Ejecutivo Nº 33327-MINAE, publicado en La Gaceta Nº 172 de 17 de septiembre de 2006 para que se lea de la siguiente manera:

Artículo 1º—Rectifíquese, delimítese y amplíese los límites del Refugio Nacional de Vida Silvestre Isla San Lucas, propiedad Estatal, declarado según Decreto Ejecutivo Nº 29277-MINAE publicado en La Gaceta Nº 30 de lunes 12 de febrero del 2001 y su modificación Decreto Ejecutivo Nº 32349-MINAE publicado en La Gaceta Nº 92 de viernes 13 de mayo del 2005 para que en adelante se lean como sigue: A. La porción terrestre conformada por la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja Cartográfica del IGN denominada Golfo, edición 3-IGNCR, situada entre las coordenadas geográficas de latitud norte 9° 55’ 55” - 9 57’ 20” y longitud Oeste 84° 53’ 23”, con una extensión de 462 ha. Se rectifican los límites de la porción terrestre insular, excluyéndose el área comprendida por las siguientes coordenadas Lambert Costa Rica Norte (…) En el sector de agua frente a Playa Cocos se rectifican los límites, excluyéndose el área comprendida por las siguientes coordenadas Lambert Costar Rica Norte: (…) En el sector de agua frente a Playa Cocos se rectifican los límites, excluyéndose el área comprendida por las siguientes coordenadas Lambert Costar Rica Norte: (…) Adiciónese al Refugio Nacional de Vida Silvestre Isla San Lucas una porción de agua que se describe por las siguientes coordenadas Costa Rica Lambert Norte: B. Un área marino-costera comprendida por las aguas alrededor de la Isla San Lucas hasta una profundidad de 6 m (…)” (la negrita fue incorporada).

Justamente, respecto a este cuerpo normativo y la adición que hace, en sentencia nro. 2010013099 de las 14:46 horas del 4 de agosto de 2010 clarificó esta Cámara que:

“(…) el Poder Ejecutivo no puede reducir éstas (sic) áreas sin observar el procedimiento legislativo y técnico, razón por la cual, la Sala declara parcialmente con lugar la demanda para anular el artículo 1° únicamente en cuanto excluye del área protegida del Refugio Nacional de Vida Silvestre Isla San Lucas, el “5.5% del área actual para la protección del patrimonio cultural”, lo anterior por infracción a lo dispuesto por los artículos 11, 50 y 89 constitucionales, y no en cuanto a la adición del sector marino e islotes, toda vez que ello es permitido al Poder Ejecutivo acordarlo mediante Decreto Ejecutivo” (el destacado fue añadido). Por ende, en el pronunciamiento aludido se dispuso: “(…) Se declara parcialmente CON LUGAR la acción. En consecuencia, se anula por inconstitucional el artículo 1° del Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) de 25 de enero de 2008, publicado en el Alcance 10 a La Gaceta No. 28 del 8 de febrero de 2008, en cuanto modifica únicamente el inciso A. del artículo 1 del Decreto Ejecutivo No. 33327-MINAE, salvo la adición de la porción de agua que se agrega al Refugio Nacional de Vida Silvestre Isla San Lucas y el apartado B que mantienen vigencia (…)”.

De este modo, los límites del Refugio Nacional de Vida Silvestre Isla San Lucas fueron ampliados por medio del artículo 1º citado ut supra en cuanto a la porción de agua y la adición de un “área marino-costera comprendida por las aguas alrededor de la Isla San Lucas hasta una profundidad de 6 m”, lo que quedó intacto en el voto transcrito.

En el sub lite, la cuestionada ley nro. 9892 indica:

“ARTÍCULO 3- Delimitaciones. El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera.

La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo, Edición 3-IGNCR en la latitud norte 9º 55' 55" - 9 57' 20" y longitud oeste 84º 53' 23", con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha).

El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m). Inserto, dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística (…)” (el resaltado fue agregado).

Ahora, si bien el ordinal 1° de la ley nro. 9892 creó el Parque Nacional Isla San Lucas, no menos cierto es que no eliminó el Refugio Nacional de Vida Silvestre Isla San Lucas, toda vez que los decretos ejecutivos nros. 29277-MINAE del 11 de enero de 2001 y 34282-TUR-MINAE-C del 25 de enero de 2008 continúan vigentes, lo que implica que en esa zona geográfica (toda el área silvestre protegida) coexisten dos categorías de manejo diferentes. Por consiguiente, contrario a lo acusado por los accionantes, en el sub examine no se aprecia que una parte del área marina costera de la isla y el islote Pan de Azúcar hayan quedado sin protección alguna, puesto que tales superficies continúan siendo un área silvestre protegida con la categoría de refugio nacional de vida silvestre.

Pese a lo anterior, lo cierto es que en este punto nuevamente resulta aplicable el desarrollo jurídico del apartado anterior. Así, en atención a los principios precautorio, preventivo -en materia ambiental y de patrimonio cultural- y de objetivación de la tutela ambiental, previo a la declaratoria, modificación o cambio de categoría de manejo del área silvestre protegida ‘Isla San Lucas’ se requiere de estudios científicos, a los efectos de verificar que la medida por adoptar no va a causar daños directos o indirectos en perjuicio de un sano equilibrio entre el ambiente y el patrimonio cultural.

Precisamente, en el sub iudice se echa de menos el mínimo sustento científico‑ambiental que fundamente la designación de los nuevos límites del Refugio Nacional de Vida Silvestre Isla San Lucas, los cuales, se reitera, fueron drásticamente reducidos. Tampoco se cuenta con estudios científicos que justifiquen el motivo por el cuál una porción de la superficie de la isla permanece bajo la categoría de manejo de refugio nacional de vida silvestre mientras que la otra pasó a parque nacional. Esto resulta todavía más grave, debido a que, tal como se indicó ut supra, i) esa decisión genera implicaciones ambientales en un área silvestre protegida, máxime que las especificaciones (biológicas, edáficas, hidrológicas, fisiográficas, ecológicas, climáticas y otras de semejante índole) de las categorías de manejo en cuestión demandan regulaciones y medidas distintas para cada una de ellas; y ii) podrían ocasionarse implicaciones negativas sobre el patrimonio cultural de la isla.

Ergo, también resulta inconstitucional el ordinal 3 de la ley nro. 9892 por vulnerar los principios precautorio, preventivo -en materia ambiental y de patrimonio cultural- y de objetivación de la tutela ambiental, así como los derechos fundamentales contemplados en los ordinales 50 y 89 de la Constitución Política, ante la ausencia de estudios científicos que justifiquen la reducción de los límites del Refugio Nacional de Vida Silvestre Isla San Lucas.

V.Sobre la alegada inconstitucionalidad de la ley nro. 9892 del 24 de agosto de 2020 por establecer fines comerciales y turísticos disfrazados de objetivos sostenibles en la fragmentación del área silvestre protegida, pese a no contar con estudios técnicos previos.

Primeramente, se debe subrayar lo regulado en la ley nro. 9892:

“ARTÍCULO 1-Creación. Se crea el Parque Nacional Isla San Lucas, que además de su condición de área silvestre protegida, será patrimonio histórico - arquitectónico y zona de aprovechamiento turístico sostenible, en las áreas específicas que se determinan en la presente ley.

ARTÍCULO 2- Interés nacional. Se declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos de la presente ley, así como la conservación y restauración de las edificaciones del antiguo presidio de la Isla San Lucas. Las dependencias de la Administración pública y del sector privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la isla.

ARTÍCULO 3- Delimitaciones. El Parque Nacional Isla San Lucas estará integrado por una porción terrestre y un área marina costera.

La porción terrestre estará conformada por la parte insular de la Isla San Lucas, ubicada en el Golfo de Nicoya, hoja cartográfica del Instituto Geográfico Nacional denominada Golfo, Edición 3-IGNCR en la latitud norte 9º 55' 55" - 9 57' 20" y longitud oeste 84º 53' 23", con una extensión de cuatrocientas sesenta y dos hectáreas (462 ha).

El área marina costera estará compuesta por las aguas alrededor de la isla, con una profundidad hasta de tres metros (3 m). Inserto, dentro de las dos áreas anteriores, existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística.

ARTICULO 4- Fines. Son fines del Parque Nacional Isla San Lucas los siguientes:

• a)La preservación del patrimonio natural, histórico, cultural, arqueológico y arquitectónico.
• b)Coadyuvar al desarrollo socioeconómico del Golfo de Nicoya.
• c)El fomento del turismo sostenible e inclusivo, para la atención de visitantes nacionales y extranjeros.
• d)El disfrute, la recreación, la generación de facilidades y comodidades para la visitación turística inclusiva (…)

ARTICULO 6- Zona turística. Las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se indican, estarán afectadas a la condición de Zona turística. Dichas áreas se especifican en las siguientes coordenadas:

• a)Área denominada Zona histórica: sitio donde se localizan las edificaciones del antiguo presidio San Lucas, coordenadas en la proyección CRTM05: (…)

Área del polígono denominado "Área de edificaciones": 265664.59 1 m2, equivalentes a 26ha5664, equivalente a 0.27km2 b) Área de recreo playa El Coco: comprendida por las siguientes coordenadas en la proyección CRTM05: (…)

Área del polígono denominado "Área de recreo playa El Coco": 76401.99, equivalentes a 7ha6401, equivalente a 0.08km2 c) Sector denominado Área de senderos: comprendida por las siguientes coordenadas en la proyección CRTM05 (…)

Área del polígono denominado "Área de senderos": 314277.731 m2, equivalentes a 31 ha4277, equivalente a 0.31 km2 d) Área denominada Sector de agua: comprendida por las siguientes coordenadas en la proyección CRTM05 (…)

Área del polígono denominado "Sector de agua" 746209.m2, equivalentes a 74ha6209, equivalente a 0.75 km2.

ARTÍCULO 7-Alcances y restricciones. El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos.

Para el cumplimiento de los fines establecidos en esta ley, en la zona turística se podrán otorgar concesiones y permisos para actividades e instalaciones distintas del servicio de parques. No se permitirán en esta zona los servicios de hospedaje y juegos de azar.

En todo caso, se deberá promover la participación de las organizaciones locales en el otorgamiento de concesiones.

Cualquier conflicto de competencias será dirimido por el ministro o la ministra de Ambiente y Energía (…)

ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones:

• a)Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque.
• b)Contribuir con la protección y conservación ambiental del parque nacional.
• c)Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos.
• d)Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla.
• e)Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país.
• f)Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.

En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura.

• g)Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes.
• h)Aprobar la estructura administrativa que se requiera para la gestión institucional del parque.
• i)Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra.
• j)Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro.
• k)Llevar a cabo cualquier otro tipo de actuación necesaria para asegurar la buena marcha del Parque Nacional Isla San Lucas y la consecución de sus fines.

En materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible (…)

ARTÍCULO 14-Comisión Administradora del Fideicomiso y sus funciones. La Comisión Administradora del Fideicomiso nombrará de su seno una presidencia, una vicepresidencia y una secretaria. Todos los miembros de esta comisión trabajarán ad honorem.

Entre las funciones de esta comisión se encuentran las siguientes:

• a)Cumplir todas aquellas labores o tareas encomendadas por el fideicomitente, establecidas en el contrato de fideicomiso.
• b)Coordinar con la Junta Directiva del Parque Nacional Isla San Lucas y seguir sus lineamientos generales, para la correcta marcha y cumplimiento del fideicomiso.
• c)Aprobar los manuales correspondientes a la administración, gestión, vigilancia y otros relativos al fideicomiso.
• d)Conocer y aprobar, de forma anual, los presupuestos ordinario y extraordinarios del fideicomiso.
• e)Instruir al fiduciario sobre las acciones que se requieran y se encuentren dentro del giro del fideicomiso.
• f)Reunirse al menos una vez al mes de forma ordinaria y, extraordinaria, cada vez que sea convocada por la Presidencia de la Junta o el representante del fiduciario.
• g)Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes.
• h)Las funciones que le atribuya el contrato de fideicomiso relativas a control interno, vigilancia, compras, personal y otras necesarias para la administración del parque nacional.
• i)Cualquier otra función que se desprenda del contrato de fideicomiso, sus manuales u otras relacionadas directamente (…)

ARTÍCULO 16- Desarrollo de infraestructura. El Parque Nacional Isla San Lucas podrá desarrollar toda la infraestructura necesaria para facilitar el turismo sostenible, incluyendo la dotación de agua, electricidad, telecomunicaciones, higiene y saneamiento, muelles, atracaderos, servicios de alimentación y vías de acceso, información y comunicación en diversos formatos, así como la que estime pertinente para el provecho de los visitantes y asegurar el disfrute y apreciación de la riqueza histórica, arquitectónica y natural del parque.

En la construcción de muelles, atracaderos y demás facilidades marítimas, el Instituto Costarricense de Puertos del Pacífico (lncop), el Ministerio de Obras Públicas y Transportes (MOPT) y el Instituto Costarricense de Turismo (ICT) suplirán el soporte técnico correspondiente a la Junta Directiva; asimismo, se faculta a estas instituciones para que construyan y den mantenimiento a las obras indicadas en esta norma” (el resaltado fue agregado).

• A)En cuanto a la declaratoria de interés nacional y de alta prioridad de desarrollo turístico sostenible en la isla San Lucas, así como el desarrollo de infraestructura para facilitarlo, incluidos muelles y atracaderos.

Cabe advertir que, previamente, lo referido al turismo en la isla San Lucas fue regulado en la supracitada ley nro. 5469, que establecía:

“Artículo 2º.- La Municipalidad deberá utilizar la Isla como un centro turístico, para lo cual se le autoriza a contratar las obras de infraestructura necesarias (…)

Artículo 4º.- En la Isla y para los fines de la presente ley, podrán funcionar hoteles y todas aquellas actividades que sean propias de una explotación turística bien organizada”.

Posteriormente, el decreto ejecutivo nro. 34282 ‘Rectifica, delimita y amplia los límites del Refugio Nacional de Vida Silvestre Isla San Lucas y declara de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla’, dispuso:

“Artículo 2º-Declárese de interés nacional y de alta prioridad el desarrollo turístico sostenible de la isla en los términos del presente decreto, así como la conservación y restauración de las edificaciones del antiguo penal en la Isla San Lucas. Las dependencias de la Administración Pública y del Sector Privado, dentro del marco legal respectivo, podrán contribuir con recursos económicos, en la medida de sus posibilidades y sin perjuicio del cumplimiento de sus propios objetivos, para colaborar con el desarrollo turístico sostenible de la Isla (…)

Artículo 4º-Queda prohibido en el Área de Administración Municipal lo siguiente:

• 1)El abastecimiento de combustibles y sus derivados con el fin de evitar la contaminación ambiental.
• 2)El uso del agua para actividades turísticas en contra de las normas técnicas dictadas por el Departamento de Aguas del Minae en colaboración con el Instituto Costarricense de Acueductos y Alcantarillados, si se requiriere, de manera que se preserve el caudal ecológico necesario para el mantenimiento del ecosistema de la isla.
• 3)El uso del Patrimonio Cultural en contra de las normas técnicas que dicte el Ministerio de Cultura, Juventud y Deportes.
• 4)La pesca y la cacería.
• 5)Otras limitaciones que establezca la Comisión Permanente conforme a los estudios técnicos pertinentes.

Artículo 5º-Para el desarrollo de actividades turísticas en el área de administración municipal y la preservación del patrimonio cultural de la isla, el ICT elaborará un Plan Maestro de Desarrollo Turístico Sostenible, que comprenderá un análisis del impacto ambiental y las normas técnicas necesarias para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección al patrimonio cultural esa área específica. El Plan Maestro de Desarrollo Turístico Sostenible contendrá al menos los siguientes elementos:

• a)Estudio de zonificación, por el que se definen los usos de suelo.
• b)Reglamento de zonificación (ordenanzas y reglamentos) que define y establece los criterios y normas sobre uso del suelo, construcción y uso de edificaciones, facilidades, servicios públicos, áreas de amortiguamiento, entre otros, necesarios para el desarrollo turístico limitado y sostenible y para la protección del patrimonio cultural de la Isla.
• c)Plan de estrategias para la ejecución del proyecto, que establece los programas, proyectos y actividades, tanto por la iniciativa privada como por la inversión pública en aras del desarrollo sostenible y de protección del patrimonio cultural.

El Plan Maestro de Desarrollo Turístico Sostenible se someterá a la Secretaría Técnica Nacional Ambiental del Minae y al Ministerio de Cultura, Juventud y Deportes para su aprobación, de conformidad con los requisitos y procedimientos establecidos por el ordenamiento jurídico.

El área de administración municipal será regulada por el citado Plan Maestro de Desarrollo Turístico Sostenible y no le será aplicable el Plan de Manejo del Refugio, salvo las reglas legales generales pertinentes. El MINAE ajustará su Plan de Manejo conforme a las nuevas dimensiones del refugio y al Plan Maestro de Desarrollo Turístico Sostenible (…)”.

Precisamente, en la sentencia nro. 2010013099 de las 14:56 horas del 4 de agosto de 2010, esta Cámara resolvió una acción de inconstitucionalidad contra tal decreto en este sentido:

“IX.- Sobre las implicaciones del desarrollo sustentable y el turismo.- La piedra angular del desarrollo está en la sustentabilidad ambiental, tiene como objetivo proteger y conservar el medio ambiente y sus recursos naturales, en equilibrio con la diversificación económica y el mejoramiento de la calidad de vida humana. La idea medular de los principios de derecho ambiental radica en la utilización racional de los recursos naturales, con la protección del medio ambiente para asegurar la sustentabilidad de las generaciones presentes y futuras. Toda actividad económica o productiva que intervenga o utilice el medio ambiente, debe responder a la filosofía del desarrollo sostenible según el impacto que tenga en él; en ese sentido, al fundarse el Poder Ejecutivo en este tipo de objetivos para el desarrollo económico y social, estima esta Sala que el turismo rural como tal, debe responder a esos valores que protegen el desarrollo sostenible, porque no podría ser la excepción, y es constitucionalmente relevante controlar las repercusiones que pueda generar en el ambiente.

Ejemplo de ello, es la Certificación para la Sostenibilidad Turística que emite el Instituto Costarricense de Turismo como un componente de suma importancia, que denota un avance por proteger el derecho al ambiente sano y ecológicamente equilibrado a la vez de impulsar la diversidad económica, esta medida genera incentivos a favor de las empresas dedicadas a la explotación turística de los recursos naturales y culturales. Por otra parte, la Ley No. 8724, que es Ley de Fomento del Turismo Rural Comunitario, busca tener beneficios a familias y comunidades al utilizar sus localidades como destinos turísticos, y entre sus normas está el inciso a) del artículo 2 que señala: “Dar un uso óptimo a los recursos ambientales que son un elemento fundamental del desarrollo turístico, manteniendo los procesos ecológicos esenciales y ayudando a conservar los recursos naturales y la diversidad biológica.” En este sentido, el Código Ético Mundial para el Turismo, adoptado por la resolución A/RES/406(XIII) de la decimotercera Asamblea General de la OMT en Santiago de Chile, el 27 de diciembre al 1 de octubre de 1999, y adoptado por la Asamblea General de las Naciones Unidas en resolución A/RES/56/212 del 21 de diciembre de 2001, establece que:

“Artículo 3.

El turismo, factor de desarrollo sostenible 1. Todos los agentes del desarrollo turístico tienen el deber de salvaguardar el medio ambiente y los recursos naturales, en la perspectiva de un crecimiento económico saneado, constante y sostenible, que sea capaz de satisfacer equitativamente las necesidades y aspiraciones de las generaciones presentes y futuras.

2. Las autoridades públicas nacionales, regionales y locales favorecerán e incentivarán todas las modalidades de desarrollo turístico que permitan ahorrar recursos naturales escasos y valiosos, en particular el agua y la energía, y evitar en lo posible la producción de desechos.

(…)

4. Se concebirá la infraestructura y se programarán las actividades turísticas de forma que se proteja el patrimonio natural que constituyen los ecosistemas y la diversidad biológica, y que se preserven las especies en peligro de la fauna y de la flora silvestre. Los agentes del desarrollo turístico, y en particular los profesionales del sector, deben admitir que se impongan limitaciones a sus actividades cuando éstas (sic) se ejerzan en espacios particularmente vulnerables: regiones desérticas, polares o de alta montaña, litorales, selvas tropicales o zonas húmedas, que sean idóneos para la creación de parques naturales o reservas protegidas.

5. El turismo de naturaleza y el ecoturismo se reconocen como formas de turismo particularmente enriquecedoras y valorizadoras, siempre que respeten el patrimonio natural y la población local y se ajusten a la capacidad de ocupación de los lugares turísticos." Para el acceso equitativo del desarrollo, se debe abandonar la idea tradicional de que ésta (sic) solo se produce en las áreas urbanas, cuando en el medio rural pueden explotarse otros factores que hacen único el lugar, procurando por supuesto no amenazar esas condiciones. No hay duda que la explotación de los recursos naturales implica diversidad económica, en esa medida el medio ambiente requiere de protección para soportar las cargas de la intervención del ser humano, por lo que es necesario asegurar un desarrollo razonable en equilibrio con el medio ambiente, de manera que el control que podría ejercerse se incrementaría según el impacto que pueda tener sobre él.

Por consiguiente, el desarrollo turístico no debe implicar la destrucción de los bienes del dominio público o del entorno, porque depende de su preservación para alcanzar el mejoramiento económico de las comunidades rurales dentro de los parámetros de la sostenibilidad. Dentro de los fines constitucionales del Estado está la de desarrollar políticas que reduzcan las brechas sociales y económicas, ajustado por supuesto a los ambientes, sean naturales, rurales o mixtos, todo ello nace de lo preceptuado por el artículo 50 constitucional. Tener acceso al desarrollo, en materia de oportunidades laborales, o en la calidad de vida, y por ende, un progreso económico forman parte del reconocimiento y avance de los derechos humanos, de ahí que el desarrollo rural a través del turismo no debe significar para los individuos abandonar sus costumbres y formas de vida tradicionales para migrar hacia las ciudades, sino un ajuste de ellas con las necesidades y avances actuales.

En este sentido, en el criterio de la Sala el verdadero reto del ser humano es que se genere el progreso y –porque no- felicidad (material y espiritual) sin que amenace los recursos disponibles en el medio ambiente; lo contrario simplemente se traduciría en desigualdades sociales que impiden avanzar hacia un nuevo estadio de desarrollo humano. La Sala reconoce que el balance es muy delicado entre uno y otro, pero para que se dé, sin desmejorar el medio ambiente, se debe acudir a la ciencia y a la técnica, para determinar cuáles son las cargas que pueden soportar determinados ambientes naturales y sus recursos, sin vulnerar el derecho de las generaciones presentes y futuras. Por todo ello, el conflicto entre la protección al medio ambiente y otros derechos que se derivan de él, ampliamente reconocidos en instrumentos internacionales de derechos humanos, merecen estas consideraciones de parte de este Tribunal Constitucional.

Esta Sala estima que el desarrollo rural, que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible. De ahí que si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones (…)

Un tipo de turismo rural de bajo impacto ecológico respetuoso de la normativa ambiental, resulta compatible con el Derecho de la Constitución, contentiva de las obligaciones internacionales ampliamente desarrolladas en los precedentes de la Sala (a las que remite esta Sala), y con el artículo 89 de la Constitución Política al fijar los objetivos culturales, entre ellos: proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico, y cuyo valor se potencia en el acceso que pueda tener de él la población. Por ello, no se demuestran incompatibilidades entre la protección al ambiente y la conservación de bienes culturales puestos a disposición de la humanidad, con un proyecto que debe desarrollarse integralmente con el ambiente, que debe ser comprensivo de todos sus componentes, no excluyente (…)

El desarrollo de la infraestructura debe ser compatible con los principios de sustentabilidad ambiental, su protección y conservación, por el contrario serían cuestionables constitucionalmente sí se realizaran obras que no tuvieran en cuenta los regímenes de protección vigentes en la Isla, como la construcción de obras de infraestructura de gran envergadura, dado que la vigencia del régimen como área protegida implicaría un cambio sustancial al uso de suelo, y no por las obras humanas que existieron mucho antes de la declaratoria de la Isla como Área Silvestre Protegida y de patrimonio histórico-arquitectónico. De ahí que, no estima la Sala que los artículos 2, 3, 4, 6 y 7 del Decreto Ejecutivo 34282-TUR-MINAET-C (sic) presenten vicios de constitucionalidad, pero entendido con los siguientes matices. La declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible, que señala el numeral 2, deberá entenderse constitucional mientras que la conservación y restauración de las edificaciones del antiguo penal y aquellas que fueron construidas con ocasión de su existencia, queden circunscritas a las labores de conservación, protección y mejoramiento de su entorno.

Lo mismo debe ocurrir con los sitios arqueológicos y el cementerio ubicado en Playa Cocos, sin perjuicio, claro está, de los estudios arqueológicos y científicos que deberán ser objeto. En cuanto a la infraestructura destinada para el uso del turista, ésta (sic) deberá estar limitada estrictamente a las áreas del complejo histórico y del camino que conduce a Playa Cocos y a esta (sic), las instalaciones que se deberán construir serán las estrictamente necesarias para atender las necesidades básicas de los visitantes y de los agentes de desarrollo turístico, sin que lo anterior implique que se pueda extender más allá de desarrollos incompatibles con una filosofía “verde”, o que no se encuentren en sintonía con la capacidad de ocupación del lugar, todo lo cual, deberá asegurarse de forma sostenible conforme a la ciencia y la técnica. Reconoce este Tribunal que se trata de un verdadero reto lograr la conservación y recuperación de las edificaciones de la Isla, así como su puesta en valor, incluidas –por ejemplo- las casas de madera ubicadas en el lugar conocido como “Las Jachas” y sus alrededores, la Enfermería, la Capilla, Edificio de Administración, y otra infraestructura necesaria para ofrecer servicios limitados del turismo de naturaleza y el eco-turismo, entre tanto, se responda a criterios de sustentabilidad, de lo contrario, conllevaría un roce de relevancia constitucional de los artículos 50 y 89.

En cuanto a los incisos a) y b) del numeral 5 deberán entenderse constitucionales en la medida en que lo pretendido en el Plan Maestro se ajuste a lo señalado por esta Sala, especialmente en el tanto los estudios de zonificación y reglamentos de zonificación no se encuentran fundados en una reducción del área silvestre protegida en el 5.5% del área” (el resaltado fue incorporado).

De este modo, la Sala se pronunció sobre la actividad turística en la isla San Lucas en tal sentencia, donde se analizó la constitucionalidad del decreto ejecutivo nro. 34282 que declaró de interés nacional y de alta prioridad el desarrollo turístico sostenible del Refugio Nacional de Vida Silvestre Isla San Lucas, acorde con un Plan Maestro de Desarrollo Sostenible. Al respecto, se dispuso que en tal plan se debía efectuar un análisis del impacto ambiental y las normas técnicas requeridas para cumplir los objetivos de desarrollo económico, social y ambiental, lo cual tenía que ser sometido a la Secretaría Técnica Nacional Ambiental y al Ministerio de Cultura, Juventud y Deporte para su aprobación. Acerca del punto, esta Cámara estableció que el turismo dirigido al patrimonio natural y cultural era constitucionalmente válido siempre que fuera sostenible, para lo cual resultaba forzoso contar con estudios científicos que determinaran la procedencia de la actividad turística.

Precisamente, para que el desenvolvimiento de actividades turísticas sostenibles y el desarrollo de la infraestructura requerida para tales efectos en el Parque Nacional Isla San Lucas sea armonioso con el derecho a un ambiente sano y ecológicamente equilibrado, resulta indefectible contar con estudios científicos en los términos expuestos ut supra a fin de que sean conformes al principio de objetivación de la tutela ambiental. Tales estudios deben ser previos, suficientes e individualizados, de forma tal que razonablemente garanticen que no se causará daño ni se pondrá en peligro al ambiente.

Sobre el particular, en la especie no se evidencia que antes de la declaratoria de interés nacional y de alta prioridad del desarrollo turístico sostenible en el Parque Nacional Isla San Lucas, así como de la autorización del desarrollo de infraestructura para facilitarlo (incluida la construcción de muelles y atracaderos), haya habido respaldo en estudios científicos con el propósito de determinar que tales actividades fueran acordes con los fines de esa área silvestre protegida, sobre todo, si se considera que los parques nacionales constituyen categorías de protección absoluta.

También cabe señalar que, aun cuando el ordinal 7 de la ley nro. 9892 prevé la existencia de un plan maestro al estatuir que: “El Parque Nacional Isla San Lucas se regirá por un plan maestro elaborado con base en criterios técnicos (…)”, no se aprecia que este incluya un análisis del impacto ambiental con la finalidad de precisar si las actividades por desarrollar en el parque nacional aludido pueden dañar o no al ambiente. Aunado a lo anterior, de acuerdo con el numeral 9 eiusdem, ese plan maestro debe ser aprobado por la Junta Directiva del Parque Nacional Isla San Lucas, cuya composición carece de integrantes de nombramiento técnico relacionado con la materia ambiental -al respecto nos referiremos en el apartado VI de este voto salvado- y la cual, si bien debe respetar el criterio técnico emitido por el SINAC en temas de conservación de la biodiversidad, no está obligada a requerir tal criterio en los términos establecidos en el ordinal 9 de la ley impugnada.

Recuérdese que en el Refugio Nacional de Vida Silvestre Isla San Lucas, de acuerdo con el decreto ejecutivo nro. 34282, el Instituto Costarricense de Turismo debe elaborar un Plan Maestro de Desarrollo Turístico Sostenible, que comprende un análisis de impacto ambiental y las normas técnicas para alcanzar los objetivos de desarrollo económico, social y ambiental, así como de protección del patrimonio cultural, el cual debe ser sometido tanto a la Secretaría Técnica Nacional Ambiental como al Ministerio de Cultura, Juventud y Deportes para su aprobación.

Aclarado esto, verificamos la lesión a los principios de progresividad y de no regresión en materia ambiental, por cuanto la superficie de la isla San Lucas, que pasó de refugio de vida silvestre a parque nacional merced a la modificación cuestionada, antes se encontraba regida por el Plan Maestro de Desarrollo Turístico Sostenible del Refugio Nacional de Vida Silvestre Isla San Lucas, en el cual, como se indicó ut supra, sí se exige un análisis de impacto ambiental y cuya aprobación recae en la Secretaría Técnica Nacional Ambiental -órgano técnico en materia ambiental- y el Ministerio de Cultura, Juventud y Deporte. Con la normativa impugnada, tal espacio geográfico, al pasar a conformar el Parque Nacional Isla San Lucas, únicamente viene a regirse por un plan maestro, respecto del cual no existe expresa obligatoriedad de efectuar estudios de impacto ambiental ni de que su aprobación vaya a estar sometida a un órgano técnico en materia ambiental. Esta desmejora en el grado de progresión al ambiente atenta contra los principios de progresividad y de no regresión en materia ambiental.

Sumado a lo anterior, en el sub examine se constata la lesión al principio precautorio, por cuanto, merced al cambio de categoría de manejo en una parte del área silvestre protegida ‘Isla San Lucas’, surge la autorización general para que se desplieguen actividades turísticas más intensivas en tal zona y, con ello, incrementa el peligro de un daño grave al ambiente, como se explica a continuación. Verbigracia, el ordinal 7 de la ley nro. 9892 contempla una autorización general para que en la zona turística del Parque Nacional Isla San Lucas se otorguen concesiones y permisos para actividades e instalaciones distintas del servicio de parques y de los servicios de hospedaje y juegos de azar. Adicionalmente, en el numeral 9 eiusdem se dispone que la Junta Directiva del parque ostenta entre otras atribuciones: “d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla (…) f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística (…)”.

Por su parte, el artículo 14 de la ley impugnada dispone entre las funciones asignadas a la Comisión Administradora del Fideicomiso “g) Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes”.

De este modo, la ley nro. 9892 prevé una habilitación general para el desarrollo de actividades turísticas de diversa índole, incluidas las comerciales, deportivas, artísticas, culturales y de transporte, lo que podría generar un daño grave o irreversible al ambiente y al patrimonio cultural, pese a lo cual se omitió contar con una medida precautoria tan elemental y básica como un estudio científico previo, mediante el cual se contara al menos con datos como las cargas turísticas que tal área silvestre puede soportar según sus características y fines de conservación, de manera tal que se pudiera prevenir un daño al ambiente y al patrimonio cultural. Ello, pese a que este Tribunal Constitucional ha resaltado la importancia de los criterios científicos en la determinación de la procedencia o no de actividades turísticas que pueden transgredir el derecho al ambiente sano y ecológicamente equilibrado.

En ese sentido, recuérdese que la supracitada sentencia nro. 2010013099 de las 14:56 horas del 4 de agosto de 2010 dispuso que: “Esta Sala estima que el desarrollo rural, que se basa en el turismo dirigido al patrimonio natural y cultural, es legítimo constitucionalmente mientras sea sostenible. De ahí que si la ciencia y la técnica sugieren la imposición de determinadas limitaciones a cantidades de grupos de visitantes, en determinadas épocas, etc. no se podrían juzgar como inconstitucionales, dado que responden a criterios de sustentabilidad, pero sin desmerecer las diferentes disposiciones internacionales que resguardan el derecho a la puesta en valor de aquellos bienes que pertenecen a la historia nacional, no solo como bienes del patrimonio nacional, sino de la humanidad entera, y no es legítima su restricción a las poblaciones”.

Lo anterior conlleva, asimismo, una lesión a los principios de progresividad y de no regresión en materia ambiental, al principio objetivación de la tutela ambiental, así como a los derechos fundamentales contemplados en los ordinales 50 y 89 de la Constitución Política. En consecuencia, se constata la inconstitucionalidad de los artículos 2, 4 incisos c) y d), 7, 9 incisos d), f) y g), 14 inciso g) y 16 de la ley nro. 9892.

• B)En cuanto a la delimitación de la zona turística establecida en los artículos 3 y 6 de la ley nro. 9892.

En el sub examine, los accionantes acusan que en los ordinales 3 y 6 de la ley nro. 9892 se instauró una zona turística de manejo diferenciado pese a la falta de estudios que justifiquen su creación.

Acerca de este punto, recuérdese que el ordinal 3 de la ley nro. 9892 prevé que dentro de la porción terrestre y marina del Parque Nacional Isla San Lucas “existirá un espacio de manejo diferenciado dedicado a la actividad turística sostenible, la promoción y el desarrollo de los sitios de interés histórico, arquitectónico y ambiental, que para todos los efectos se denominará Zona turística”. Por su parte, en el numeral 6 eiusdem se detallan las superficies que conforman esa zona turística, pues regula que: “Las áreas correspondientes a las edificaciones del antiguo presidio San Lucas, incluyendo el muelle, así como la zona marina y terrestre de acceso a la isla, los predios, los senderos y las zonas de playa que se indican, estarán afectadas a la condición de Zona turística. Dichas áreas se especifican en las siguientes coordenadas (…)”.

En ese sentido, cabe indicar que, en el oficio nro. SINAC-DE-1338 del 4 de agosto de 2019, el Sistema Nacional de Áreas de Conservación se refirió al entonces proyecto de ley nro. 21287 que decantó en la ley nro. 9892 y señaló: “Para la declaración de una zona turística se deben aportar una serie de estudios técnicos que respalden el establecimiento de dicha (sic), esto por cuanto dicha actividad debe ser bajo impacto, muy sostenible y ubicada estratégicamente en lugares que no pongan en riesgo los EFM priorizados por el PGM del ASP. Cabe indicar que para la definición de este tipo de zonificación, el SINAC ha creado y oficializado instrumentos específicos que orientan metodológicamente la definición este tipo de zonificaciones en las ASP del país”.

En similar sentido, el Ministerio de Ambiente y Energía se pronunció en relación con el referido proyecto de ley, lo cual se aprecia en el oficio nro. DM-1216-2019 del 27 de noviembre de 2019, donde se lee: “En el artículo 6 se propone que toda zonificación de ASP sea resultado del análisis técnico del Plan General de Manejo, que consiste en un instrumento de planificación que permite orientar la gestión del ASP hacia el cumplimiento de sus objetivos. Sugerimos que la definición de la zona turística sea el resultado de lo que arrojen los estudios técnicos del Plan General de Manejo posterior” (la negrita es del original).

Ahora, aun cuando la intensión del legislador con tales normas pudo haber sido circunscribir la zona turística en cuestión a un área específica de la isla no para privarle de la tutela ambiental que posee, sino para delimitar en qué superficie específica se pueden realizar actividades turísticas sostenibles, en el sub lite no se aprecia que al delimitar tal zona se hayan tomado en consideración factores técnicos (como las características biológicas, edáficas, hidrológicas, fisiográficas, ecológicas, climáticas, y otras de la zona, así como factores históricos y arquitectónicos) a los efectos de determinar científicamente su procedencia o no en relación con la protección al ambiente y al patrimonio cultural. Esto resulta aún más grave, cuando se observa que, según el supracitado artículo 3, la zona turística constituye un área de manejo diferenciado, en la que, dada la ausencia de los estudios aludidos, no existe certeza de que la preservación y la conservación de los recursos naturales y culturales sean los objetivos principales.

Por ende, los suscritos magistrados estimamos que en el sub lite se constata la transgresión al principio de objetivación de la tutela ambiental al crear dentro del Parque Nacional Isla San Lucas una zona turística y definir sus límites sin estudio científico alguno, lo que también resulta lesivo de los principios precautorio y preventivo -en material ambiental y cultural-, y los derechos fundamentales contenidos en los artículos 50 y 89 de la Constitución Política, por lo que los ordinales 3 y 6 de la ley nro. 9892 resultan inconstitucionales.

• C)En cuanto a los fines comerciales previstos en los ordinales 9 y 14 de la ley nro. 9892.

En cuanto a este agravio, cabe recordar que los accionantes sostienen que en la ley nro. 9892 se permiten fines comerciales, lo cual es incompatible con las regulaciones dispuestas para los parques nacionales.

Ciertamente, apreciamos que en los ordinales 9 y 14 de la ley impugnada se hace referencia a actividades comerciales. Según la primera de estas normas, la Junta Directiva del Parque Nacional Isla San Lucas tiene entre sus atribuciones: “d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla”. Por su parte, de acuerdo con el artículo 14 le corresponde a la comisión administradora del fideicomiso: “g) Aprobar los convenios y contratos para la prestación de servicios recreativos y o comerciales, así como de los servicios esenciales y no esenciales, para lograr el mayor aprovechamiento de la Zona turística y disfrute de los visitantes”.

Sobre el particular, el artículo 3 de la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ dispone que las riquezas existentes en los parques nacionales no se explotarán con fines comerciales, y que los Gobiernos Contratantes solo convienen en proveer a esas áreas silvestres protegidas “de las facilidades para el solaz y la educación del público”. Concerniente a los parques nacionales, la Ley del Servicio Nacional de Parques es contundente al señalar que en esas áreas silvestres protegidas está prohibido a los visitantes “15) Realizar cualquier tipo de actividad comercial, agrícola o industrial”.

En virtud de lo anterior, resulta relevante traer a colación la sentencia nro. 2012013367 de las 11:33 horas del 21 de setiembre de 2012, en la que este Tribunal Constitucional se refirió a los principios de progresividad y de no regresión en materia ambiental:

“V. Sobre los principios de progresividad y no regresión de la protección ambiental. El principio de progresividad de los derechos humanos ha sido reconocido por el Derecho Internacional de los Derechos Humanos; entre otros instrumentos internacionales, se encuentra recogido en los artículos 2 del Pacto Internacional de Derechos Económicos Sociales y Culturales, artículo 1 y 26 de la Convención Americana sobre Derechos Humanos y artículo 1 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales. Al amparo de los estas normas, el Estado asume la obligación de ir aumentando, en la medida de sus posibilidades y desarrollo, los niveles de protección de los derechos humanos, de especial consideración aquellos, que como el derecho al ambiente (art. 11 del Protocolo), requieren de múltiples acciones positivas del Estado para su protección y pleno goce por todos sus titulares.

Del principio de progresividad de los derechos humanos y del principio de irretroactividad de las normas en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas, recogido en el numeral 34 de la Carta Magna, se deriva el principio de no regresividad o de irreversibilidad de los beneficios o protección alcanzada. El principio se erige como garantía sustantiva de los derechos, en este caso, del derecho a un ambiente sano y ecológicamente equilibrado, en virtud del cual el Estado se ve obligado a no adoptar medidas, políticas, ni aprobar normas jurídicas que empeoren, sin justificación razonable y proporcionada, la situación de los derechos alcanzada hasta entonces. Este principio no supone una irreversibilidad absoluta pues todos los Estados viven situaciones nacionales, de naturaleza económica, política, social o por causa de la naturaleza, que impactan negativamente en los logros alcanzados hasta entonces y obliga a replantearse a la baja el nuevo nivel de protección.

En esos casos, el Derecho a la Constitución y los principios bajo examen obligan a justificar, a la luz de los parámetros constitucionales de razonabilidad y proporcionalidad, la reducción de los niveles de protección. En este sentido, la Sala Constitucional ha expresado en su jurisprudencia, a propósito del derecho a la salud: “…conforme al PRINCIPIO DE NO REGRESIVIDAD, está prohibido tomar medidas que disminuyan la protección de derechos fundamentales. Así entonces, si el Estado costarricense, en aras de proteger el derecho a la salud y el derecho a la vida, tiene una política de apertura al acceso a los medicamentos, no puede -y mucho menos por medio de un Tratado Internacional- reducir tal acceso y hacerlo más restringido, bajo la excusa de proteger al comercio. (Sentencia de la Sala Constitucional Nº 9469-07). En relación con el derecho al ambiente dijo: “Lo anterior constituye una interpretación evolutiva en la tutela del ambiente conforme al Derecho de la Constitución, que no admite una regresión en su perjuicio.” (Sentencia de la Sala Constitucional Nº 18702-10)”. (Lo destacado no corresponde al original). (En el mismo sentido, las sentencias 2014-012887, 2017-002375, 2017-005994, 2019-012745 y 2019-017397)”.

De este modo, de acuerdo con el principio de progresividad, el Estado asume la obligación de aumentar, en la medida de lo posible, los niveles de protección de los derechos humanos, incluido el derecho al ambiente sano y ecológicamente equilibrado. Por su parte, la aplicación del principio de no regresión consiste en una garantía que constriñe al Estado a abstenerse de adoptar medidas, políticas o normas que empeoren, sin una justificación razonable y proporcionada, el grado de protección a los derechos fundamentales ya alcanzado.

En atención a los principios de progresividad y de no regresión en materia ambiental, así como en consideración de lo contenido tanto en la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ como en la Ley del Servicio Nacional de Parques Nacionales, en los parques nacionales se encuentra prohibida la explotación con fines comerciales de sus riquezas y el desarrollo de actividades comerciales por parte de los visitantes. Pese a ello, y en detrimento de tales principios, en la ley nro. 9892 se prevén autorizaciones genéricas para la realización de actividades turísticas comerciales en el Parque Nacional Isla San Lucas, así como la suscripción de convenios o contratos para la prestación de servicios comerciales, lo cual se evidencia en los ordinales 9 inciso d) y 14 inciso g).

Aunado a lo expuesto, en el sub examine, tal como se ha indicado en considerandos previos, en relación con la ley impugnada se echa de menos la existencia de estudios científicos que resguarden los principios precautorios, preventivo - en material ambiental y cultural - y de objetivación de la tutela ambiental, así como los derechos fundamentales contemplados en los ordinales 50 y 89 de la Constitución Política.

Precisamente, pese a que la autorización para realizar de actividades comerciales dentro del Parque Nacional Isla San Lucas podría generar un peligro de daño grave o irreversible en un área de conservación de protección absoluta en los términos previamente expuestos, no se aprecia que se haya adoptado las medidas adecuadas y suficientes para resguardar al ambiente, verbigracia, a través de estudios que indiquen los tipos de actividad comercial absolutamente prohibidos o las pautas concretas que esta debe acatar.

Ante esta situación, estimamos lesionados los principios de progresividad y de no regresión en materia ambiental, los principios precautorio, preventivo - en material ambiental y cultural - y de objetivación de la tutela ambiental, así como los derechos fundamentales contemplados en los ordinales 50 y 89 de la Constitución Política. En consecuencia, consideramos que resulta inconstitucional la palabra “comerciales,” del ordinal 9 de la ley nro. 9892, así como la frase “y o comerciales” del artículo 14 eiusdem.

VI.Sobre la alegada inconstitucionalidad de la ley nro. 9892 del 24 de agosto de 2020, en cuanto a la integración de la junta directiva encargada de administrar el Parque Nacional Isla San Lucas.

El ordinal 8 de la ley nro. 9892 califica a la Junta Directiva del Parque Nacional Isla San Lucas como un órgano de desconcentración máxima adscrito al Ministerio de Ambiente y Energía; cuenta con personalidad jurídica instrumental para el ejercicio de sus competencias y está encargado del gobierno y administración del parque. Por su parte, el numeral 10 eiusdem regula la integración de la junta de este modo:

“ARTÍCULO 10-Integración. La Junta Directiva del Parque Nacional Isla San Lucas estará integrada por los siguientes miembros:

• a)La ministra o el ministro de Ambiente y Energía, quien lo presidirá, pudiendo actuar como suplente un viceministro o viceministra de la cartera.
• b)La ministra o el ministro de Cultura, pudiendo actuar como suplente un viceministro o viceministra de la cartera.
• c)La Presidencia Ejecutiva del Instituto Costarricense de Turismo (ICT), pudiendo actuar como suplente la persona que ostenta la gerencia o un integrante de la Junta Directiva de dicho instituto.
• d)Una persona representante del Poder Ejecutivo designada por el Consejo de Gobierno, órgano que nombrará, además, a una persona suplente.
• e)La alcaldesa o el alcalde de la Municipalidad del cantón Central de Puntarenas, pudiendo actuar como suplente una vicealcaldía.
• f)La presidenta o el presidente de la Cámara de Turismo de Puntarenas, pudiendo actuar como suplente alguno de los integrantes de la Junta Directiva de dicha cámara.

El presidente o la presidenta de la Junta ostentará la representación judicial y extrajudicial del órgano. Asimismo, contará con voto de calidad en los términos del artículo 49 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. Los integrantes de la Junta Directiva no devengarán ninguna dieta”.

A su vez, de acuerdo con el ordinal 9 eiusdem, la Junta Directiva del Parque Nacional Isla San Lucas tiene estas atribuciones:

“ARTÍCULO 9- Cometidos y potestades. La Junta Directiva del Parque Nacional Isla San Lucas tendrá las siguientes atribuciones:

• a)Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque.
• b)Contribuir con la protección y conservación ambiental del parque nacional.
• c)Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos.
• d)Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla.
• e)Aprobar los objetivos estratégicos para el mercadeo y la promoción necesarios para dar a conocer el Parque Nacional Isla San Lucas, tanto dentro como fuera del país.
• f)Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.

En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura.

• g)Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes.
• h)Aprobar la estructura administrativa que se requiera para la gestión institucional del parque.
• i)Aprobar, renovar, modificar o revocar todo fideicomiso relativo al Parque Nacional Isla San Lucas, así como todo tipo de contratos y convenios con entidades y personas, públicas o privadas. Deberá determinar los precios de entrada al parque nacional, así como aprobar los contratos de los diversos sistemas de reservación y compra.
• j)Aprobar la utilización de las figuras de concesión de obra pública con servicio público y contratación de mutuo beneficio con entidades sin fines de lucro.
• k)Llevar a cabo cualquier otro tipo de actuación necesaria para asegurar la buena marcha del Parque Nacional Isla San Lucas y la consecución de sus fines.

En materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible” (la negrita fue incorporada).

De otro lado, el numeral 1º de la ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ dispone: “Se entenderá por Parques Nacionales: Las regiones establecidas para la protección y conservación de las bellezas escénicas naturales y de la flora y la fauna de importancia nacional, de las que el público pueda disfrutar mejor al ser puestas bajo la vigilancia oficial”.

Ahora, cabe advertir que la Ley de Biodiversidad estatuye:

“ARTÍCULO 22.- Sistema Nacional de Áreas de Conservación Créase el Sistema Nacional de Áreas de Conservación, en adelante denominado Sistema, que tendrá personería jurídica propia; será un sistema de gestión y coordinación institucional, desconcentrado y participativo, que integrará las competencias en materia forestal, vida silvestre, áreas protegidas y el Ministerio del Ambiente y Energía, con el fin de dictar políticas, planificar y ejecutar procesos dirigidos a lograr la sostenibilidad en el manejo de los recursos naturales de Costa Rica. Conforme a lo anterior, la Dirección General de Vida Silvestre, la Administración Forestal del Estado y el Servicio de Parques Nacionales ejercerán sus funciones y competencias como una sola instancia, mediante la estructura administrativa del Sistema, sin perjuicio de los objetivos para los que fueron establecidos. Queda incluida como competencia del Sistema la protección y conservación del uso de cuencas hidrográficas y sistemas hídricos (…)

ARTÍCULO 24.- Integración del Consejo Nacional El Consejo Nacional de Áreas de Conservación estará integrado de la siguiente manera:

1. 1El Ministro del Ambiente y Energía, quien lo presidirá.
2. 2El Director Ejecutivo del Sistema, que actuará como secretario del consejo
3. 3El Director Ejecutivo de la Oficina Técnica de la Comisión.
4. 4Los directores de cada Área de Conservación.
5. 5Un representante de cada Consejo Regional de las Áreas de Conservación, designado del seno de cada Consejo.

ARTÍCULO 25.- Funciones del Consejo Nacional Serán funciones de este Consejo:

1. 1Definir la ejecución de las estrategias y políticas tendientes a la consolidación y desarrollo del Sistema Nacional de Áreas de Conservación, y vigilar que se ejecuten.
2. 2Supervisar y fiscalizar la correcta gestión técnica y administrativa de las Áreas de Conservación.
3. 3Coordinar, en forma conjuntamente con la Comisión, la elaboración y actualización de la Estrategia nacional para la conservación y el uso sostenible de la biodiversidad, la cual deberá ser ampliamente consultada con la sociedad civil y coordinada debidamente con todo el sector público, dentro del marco de cada una de las Áreas de Conservación.
4. 4Definir estrategias y políticas relacionadas con la consolidación y el desarrollo de las áreas protegidas estatales, así como supervisar su manejo.
5. 5Aprobar las estrategias, la estructura de los órganos administrativos de las áreas protegidas y los planes y presupuestos anuales de las Áreas de Conservación.
6. 6Recomendar la creación de nuevas áreas protegidas que aumenten su categoría de protección.
7. 7Realizar auditorías técnicas y administrativas para la vigilancia del buen manejo de las Áreas de Conservación y sus áreas protegidas.
8. 8Establecer los lineamientos y directrices para hacer coherentes las estructuras, mecanismos administrativos y reglamentos de las Áreas de Conservación.
9. 9Nombrar de una terna propuesta por los consejos regionales, los directores de las Áreas de Conservación.
10. 10Aprobar las solicitudes de concesión indicadas en el artículo 39 de esta ley.
11. 11Otras funciones necesarias para cumplir con los objetivos de esta y otras leyes relacionadas con las funciones del Sistema (…)

ARTÍCULO 28.- Áreas de Conservación El Sistema estará constituido por unidades territoriales denominadas Áreas de Conservación bajo la supervisión general del Ministerio del Ambiente y Energía, por medio del Consejo Nacional de Áreas de Conservación, con competencia en todo el territorio nacional, según se trate de áreas silvestres protegidas, áreas con alto grado de fragilidad o de áreas privadas de explotación económica. Cada área de conservación es una unidad territorial del país, delimitada administrativamente, regida por una misma estrategia de desarrollo y administración, debidamente coordinada con el resto del sector público. En cada uno se interrelacionan actividades tanto privadas como estatales en materia de conservación sin menoscabo de las áreas protegidas. Las Áreas de Conservación se encargarán de aplicar la legislación vigente en materia de recursos naturales, dentro de su demarcación geográfica.

Deberán ejecutar las políticas, las estrategias y los programas aprobados por el Consejo Nacional de Áreas de Conservación, en materia de áreas protegidas; asimismo, tendrá a su cargo la aplicación de otras leyes que rigen su materia, tales como la Ley de conservación de la vida silvestre, No. 7317, de 30 de octubre de 1992, y la Ley Forestal, No. 7575, de 13 de febrero de 1996, Ley Orgánica, No. 7554, de 4 de octubre de 1995, y la Ley de Creación del Servicio de Parques Nacionales, No. 6084, de 24 de agosto de 1977. Basado en las recomendaciones del Consejo, el Ministerio del Ambiente y Energía definirá la división territorial que técnicamente sea más aconsejable para las Áreas de Conservación del país, así como sus modificaciones.

ARTÍCULO 29.- Consejo Regional del Área de Conservación El Sistema ejercerá la administración de las Áreas de Conservación, por medio de un Consejo Regional, el cual se integrará mediante convocatoria pública, que realizará el representante regional del Sistema, a todas las organizaciones no gubernamentales y comunales interesadas, las municipalidades y las instituciones públicas presentes en el área. Estará conformado por el funcionario responsable del área protegida y contará con un mínimo de cinco miembros representantes de distintos sectores presentes en el área, electos por la Asamblea de las organizaciones e instituciones convocadas para este a ese efecto; siempre deberá elegirse a un representante municipal. En aquellas circunscripciones donde no existan las organizaciones indicadas para integrar el Consejo, corresponderá a las municipalidades designarlos en coordinación con el representante del Sistema.

Estos Consejos tendrán la estructura de organización que indique el reglamento de esta ley, la cual contará, como mínimo, con un Presidente, un Secretario, un Tesorero y dos Vocales, todos electos de su seno, así como con un representante del Sistema, quien siempre funcionará como Secretario Ejecutivo. En las Áreas de Conservación donde sea necesario, por su complejidad, podrán crearse, por acuerdo del Consejo Regional del Área de Conservación, Consejos Locales, cuya constitución se definirá en el acuerdo de creación. Cada Consejo Regional establecerá su propio reglamento en el marco de la legislación vigente, el cual será sometido al Consejo Nacional para la aprobación final. En este reglamento se establecerá un porcentaje del ingreso económico total de las Áreas de Conservación para su funcionamiento”.

En suma, el Sistema Nacional de Áreas de Conservación consiste en uno “de gestión y coordinación institucional, desconcentrado y participativo, que integrará las competencias en materia forestal, vida silvestre, áreas protegidas y el Ministerio del Ambiente y Energía, con el fin de dictar políticas, planificar y ejecutar procesos dirigidos a lograr la sostenibilidad en el manejo de los recursos naturales de Costa Rica” -numeral 22- que “ejercerá la administración de las Áreas de Conservación, por medio de un Consejo Regional” -ordinal 29-. Además, obsérvese que el SINAC tiene personería jurídica instrumental y desconcentración máxima, lo que implica que cumple funciones específicas que el Ministerio de Ambiente y Energía no puede asumir.

En cuanto a este tema, resulta oportuno traer a colación lo consignado en la sentencia nro. 2006009563 de las 16:06 horas del 5 de julio de 2006:

“IV.- La ley de la biodiversidad desconcentra del Ministerio de Ambiente y Energía dos órganos: la Comisión Nacional para la gestión de la biodiversidad y el Sistema Nacional de Áreas de Conservación. Al primero le otorga "personería jurídica instrumental" (artículo 14) y al segundo "personería jurídica propia" (artículo 22). Estos 2 artículos, son precisamente las disposiciones impugnadas por el accionante que están vinculados con el tema de la personería del órgano, las cuales indican:

"Artículo 14.- Créase la Comisión Nacional para la Gestión de la Biodiversidad con personería Jurídica instrumental, como órgano desconcentrado del Ministerio de Ambiente y Energía…" "Artículo 22.- Créase el Sistema Nacional de Áreas de Conservación, en adelante denominado Sistema, que tendrá personería jurídica propia; será un sistema de gestión y coordinación institucional, desconcentrado y participativo, que integrará las competencias en materia forestal, vida silvestre, áreas protegidas y el Ministerio del Ambiente y Energía, con el fin de dictar políticas, planificar y ejecutar procesos dirigidos a lograr la sostenibilidad en el manejo de los recursos naturales de Costa Rica. Conforme a lo anterior, la Dirección General de Vida Silvestre, la Administración Forestal del Estado y el Servicio de Parques Nacionales ejercerán sus funciones y competencias como una sola instancia, mediante la estructura administrativa del Sistema, sin perjuicio de los objetivos para los que fueron establecidos. Queda incluida como competencia del Sistema la protección y conservación del uso de cuencas hidrográficas y sistemas hídricos".

En el caso de la Comisión Nacional para la Gestión de la Biodiversidad (CONAGEBIO), la disposición es clara en otorgarle una personalidad jurídica instrumental como órgano desconcentrado. Si bien, efectivamente la norma no señala el grado de desconcentración de este órgano, este Tribunal entiende, según las potestades y la competencia específica otorgada, que se trata de una desconcentración máxima del Ministerio del Ambiente y Energía, pues se trata de un órgano especializado en materia de biodiversidad. Sobre este tipo de organización, la Sala en su más reciente jurisprudencia señaló en la sentencia No. 2005-3629:

"IV.- Sobre el fondo. Siendo el punto medular de este estudio la inconstitucionalidad del dotamiento a un órgano administrativo desconcentrado de una personalidad jurídica instrumental que le permita contratar, es conveniente revisar de previo las funciones que constitucionalmente le han sido otorgadas al Poder Ejecutivo y los alcances de esta figura jurídica.

a- Funciones otorgadas por la Constitución Política al Poder Ejecutivo. El artículo 140 de la Constitución nos determina un ámbito de competencias y atribuciones que son exclusivas -y excluyentes- del Poder Ejecutivo, entendiendo por tal, al Presidente de la República y al Ministro respectivo. Así, se demarcan como propias y exclusivas, la función de dirección política o gubernativa y la dirección de la política internacional. En cuanto a la función de dirección política, -que es la única que nos avocaremos a desarrollar, en atención al interés de estudio de esta acción-, es importante resaltar que le corresponde al Poder Ejecutivo una función de orientación política en lo relativo a la actividad estatal, cuya finalidad es la de orientar las políticas estatales en los diversos ámbitos de interés público, a fin de mantener la necesaria unidad del Estado; y ello se logra a través de los diversos mecanismos de autotutela administrativa (potestad de planificación, potestad de dirección -lo relacionado con la emisión de directrices-, la potestad de coordinación -sectorización y regionalización-, la potestad de emitir autorizaciones -aprobaciones, refrendos y vistos buenos-).

Así, lejos de ser una competencia de orden legal, se trata de una de orden constitucional, propia del Poder Ejecutivo, según lo ha considerado con anterioridad esta Sala, en virtud de lo cual, es el Ejecutivo el que debe fijar la política en un área de acción determinada y no a la inversa:

"El Poder Ejecutivo -Gobierno-, como organización jurídica y política, es el que se encarga de organizar, dirigir y encauzar a la sociedad en todos sus aspectos político, jurídico, económico y social. La función ejecutiva es una tarea esencial del Gobierno en sus distintos órganos o ministerios, como lo es también la directiva política de fijar los objetivos y metas de la acción coordinada en los demás entes públicos, proponiendo los medios y métodos para conseguir esos objetivos. Es también función esencial del Poder Ejecutivo orientar, coordinar y supervisar el aparato de la Administración (artículo 140, inciso 8 de la Constitución Política) y dictar normas generales que no son solo simple ejecución de normas legales sino delimitantes (art. 140.2, Constitución Política) ..."(sentencia número 3089-98, de las quince horas del doce de mayo de mil novecientos noventa y ocho).

En este sentido, es importante anotar, que en virtud de los procesos organizativos de la descentralización por la materia -instituciones autónomas- (artículo 188 a 190 de la Constitución Política) y territorial -municipalidades- (artículo 169 y 170 de la Constitución Política), y de la desconcentración (artículo 83 de la Ley General de la Administración Pública), estas funciones no son realizadas en forma exclusiva por el Poder Ejecutivo; sin embargo, en virtud de lo dispuesto en los artículos 26 inciso b) y 27.1 de la Ley General de la Administración Pública, se mantiene en el Poder Ejecutivo, la función de dirección y coordinación de las tareas de Gobierno y de la Administración Pública Central en su conjunto, y también de la Administración descentralizada, en lo que corresponde, en virtud del grado de autonomía de gobierno de las municipalidades -dada por norma constitucional-. Esta Sala ya señaló también, en la sentencia número 2002-06513, de las catorce horas cincuenta y siete minutos del tres de julio del dos mil dos, que la estructura del Estado costarricense quedó determinada por el Constituyente originario en la Constitución Política, y que, aunque su estructura no es cerrada ("números clausus"), el legislador ordinario -poseedor indiscutible de la competencia residual- debe ajustarse, en relación con la creación de entes y órganos y públicos, a los principios de ese orden fundamental.

Es así como la doctrina del Derecho Público hace una clara diferenciación entre descentralización y desconcentración administrativas, categorizando a la primera como aquella conformada por personas jurídicas públicas con personalidad jurídica plena o especial; con una atribución o competencia específica, que desarrolla en forma exclusiva o privativa, y no concurrente, alternativa o paralela, por lo que el Ente mayor (Estado) no puede invadir su esfera de competencias, toda vez que se trata de competencias que han sido trasladadas del Poder Ejecutivo a la nueva institución; para lo cual se les dota de patrimonio y autonomía presupuestaria; de modo que se les reconoce una aptitud legal para administrarse a sí mismas (autonomía administrativa), en los términos previstos en el artículo 188 de la Constitución Política:

"Las instituciones autónomas del Estado gozan de independencia administrativa y están sujetas a la ley en materia de gobierno. Sus directores responden por su gestión." Por su parte, por órgano desconcentrado se hace mención al fenómeno que se produce dentro de una misma persona jurídica -sin crear un nuevo ente- con una tarea competencial concreta y dependiente, en lo no desconcentrado, de la jerarquía del ente al que pertenece, según se dispone en los artículos 83.2, 83.3, 83.4 y 83.5 de la Ley General de la Administración Pública:

"2. La desconcentración mínima se dará cuando el superior no pueda:

• a)Avocar competencias del inferior; y b) Revisar o sustituir la conducta del inferior, de oficio o a instancia de parte.

3. La desconcentración será máxima cuando el inferior esté sustraído además, a órdenes, instrucciones o circulares del superior.

4. Las normas que crean la desconcentración mínima serán de aplicación restrictiva en contra de la competencia del órgano desconcentrado y las que crean la desconcentración máxima sean de aplicación extensiva en su favor." De manera que existe desconcentración administrativa cuando por norma legal se atribuye a un órgano inferior del ente una competencia exclusiva, con algún grado de autonomía, con lo que se produce la pérdida de la competencia por parte del superior jerárquico, de donde, su condición nunca puede ser igual a la del superior, aún (sic) cuando se trate del grado máximo de la desconcentración. La doctrina es unánime al estimar que la Administración Pública está conformada por el conjunto de entes públicos que conforman la organización administrativa, esto es, por el ente público mayor (Estado o Administración Pública Central), y el resto de los entes públicos menores (Administración Pública Descentralizada, sea institucional o por servicios -instituciones autónomas- o territorial -municipalidades), que han sido creados por un acto de imperio, de orden constitucional (caso de las municipalidades) o legal.

En este sentido, la descentralización siempre implicará la creación de entes públicos menores, distinto del Estado, dotados de personalidad jurídica, patrimonio propio (lo cual implica autonomía financiera) y la atribución de una competencia, exclusiva y excluyente que se cercena del Poder Ejecutivo; motivo por el cual el ente público mayor -Estado- no puede invadir su esfera de competencia, aunque si está sujeto a la tutela administrativa (dirección, planificación, coordinación, y control). Así, el elemento fundamental para determinar la presencia de un ente es la dotación de la personalidad jurídica, que es delegada por el Estado para la realización de una competencia específica, y que tiene la consecuencia inmediata de convertirlo en un centro de imputación de derechos y obligaciones, esto es, lo legitima para gestionar por sí y ante sí las competencias delegadas, en atención al grado de autonomía otorgado (administrativa -mínima y de primer grado-, propia de las instituciones autónomas; de gobierno -de segundo grado-, propia de las municipalidades y de la Caja Costarricense del Seguro Social en lo relativo a la administración de los seguros sociales; y de organización -plena o de tercer grado, propia de las universidades del Estado).

Es así como la dotación de personalidad jurídica a un ente público lo coloca en una posición diferente de quien, por carecer de personalidad, constituye un órgano. Por tal motivo las actuaciones que realicen estos entes es responsabilidad es del ente, no del Estado en sentido estricto. Por último, es necesario recordar que la descentralización es un modelo de organización de la Administración, con el objeto de buscar la mejor eficiencia de la gestión pública, para la satisfacción del interés público encomendado.

b- La personalidad jurídica instrumental. Ahora bien, la Sala ha sostenido el criterio de que no resulta inconstitucional la dotación de personalidad jurídica instrumental a un órgano desconcentrado, como un modelo de organización administrativa, a efecto de lograr una mayor eficiencia en el aparato estatal. Ha sido considerada como una personificación presupuestaria, que le confiere la potestad a un órgano desconcentrado personalidad para administrar sus recursos con independencia del Ente público al que pertenece, aunque esté subordinado en todos los demás aspectos que son propios de la función desconcentrada. Se trata de una dotación de mecanismos e instrumentos jurídicos estrictamente necesarios para que el órgano pueda cumplir los cometidos y funciones públicas delegadas en virtud de ley, todo lo cual, resulta no sólo adecuado sino necesario bajo la cobertura de dos principios fundamentales de la gestión pública, la eficiencia y adaptabilidad al cambio.

De tal suerte, que esa capacidad instrumental está sujeta a los términos y condiciones previstos en la ley de su creación, y en cuanto resulten estrictamente indispensables para el cumplimiento de la función pública delegada; de manera que, si la ley omite la competencia, deben presumirse como propias y reservadas del superior. Así, podrá contratar personal, bienes y servicios que le fueren indispensables para el cumplimiento de la función pública que le fue delegada, únicamente en el entendido de que la ley le faculte expresamente para ello. Por otro lado, son vinculantes y aplicables a este tipo de órganos todas las normas y principios constitucionales de control y fiscalización de la Hacienda Pública, sea, los que rigen la contratación administrativa, y los del Derecho Presupuestario. En todo lo demás, están sometidos a los sistemas de control propio de la actividad de las instituciones públicas." Bajo esta ponderación, el Tribunal mantiene el criterio de que no resulta inconstitucional, otorgarle personalidad jurídica instrumental a un órgano desconcentrado de la administración según las consideraciones expuestas.

De manera que, la creación de la CONAGEBIO bajo la condición de órgano desconcentrado con personalidad jurídica instrumental, no resulta inconstitucional. De igual modo, la Sala aplica las consideraciones expuestas al Sistema Nacional de Áreas de Conservación, el cual según el artículo 22 cuestionado, fue constituido como un sistema de gestión y coordinación institucional, desconcentrado y participativo con el fin de integrar las competencias en materia forestal, vida silvestre, áreas protegidas y el Ministerio de Ambiente y Energía. Si bien dicha disposición señala que este órgano tendrá personería jurídica propia, lo cierto es que ésta, no puede ser entendida como una personería plena, sino instrumental, pues precisamente el legislador lo creó como un órgano desconcentrado, a fin de atribuirle competencias exclusivas y técnicas, pero con un cierto grado de independencia e imparcialidad, que le permitiera a la administración, lograr un mayor nivel de eficacia, eficiencia, celeridad y agilidad en su actuar. Así las cosas, esta disposición tampoco resulta inconstitucional” (el resaltado no es del original).

Lo anterior evidencia que el SINAC desempeña un papel fundamental en relación con las áreas de conservación, entre las que se encuentran las áreas silvestres protegidas, como la isla San Lucas, lo que se refleja en su condición de órgano de desconcentración máxima en materia forestal, de vida silvestre y de áreas protegidas. Por lo que el Sistema Nacional de Áreas de Conservación ejerce competencias exclusivas y técnicas en tales ámbitos, sin que el MINAE pueda darle órdenes, instrucciones o emitir circulares.

En consonancia con semejante rol, el Reglamento a la Ley Forestal -decreto ejecutivo nro. 25721 del 17 de octubre de 1996- dispone:

“Artículo 11.-En los terrenos previamente declarados como Patrimonio Natural del Estado, tanto dentro de las Áreas Silvestres Protegidas como fuera de ellas, sólo se permitirá realizar actividades de capacitación, ecoturismo e investigación, estas actividades estarán sujetas a lo establecido en el plan de manejo del Área Silvestre Protegida y otras regulaciones establecidas en la presente normativa, de la siguiente manera:

A- Dentro de las Áreas Silvestres Protegidas En el caso de las Áreas Silvestres Protegidas a excepción de los Parques Nacionales y las Reservas Biológicas, las actividades de ecoturismo se podrán realizar única y exclusivamente en las zonas establecidas por el Sistema Nacional de Áreas de Conservación (SINAC), de conformidad con la zonificación de cada Área Silvestre Protegida” (el resaltado fue agregado).

Otra muestra del papel otorgado al SINAC respecto a las áreas silvestres protegidas se refleja en la Ley de Conservación de la Vida Silvestre:

“Artículo 83.-Se prohíbe la extracción de vida silvestre (*), continentales e insulares, en los refugios nacionales de vida silvestre, con excepción del manejo y la extracción para viveros o zoocriaderos, previa realización de los correspondientes estudios científico técnicos.

El Sistema Nacional de Áreas de Conservación (*) tendrá las facultades y deberes que establece la Ley No. 6043, respecto de los Refugios Nacionales de Vida Silvestre que incluyen áreas de la zona marítimo terrestre”.

Además, en el Reglamento a la Ley de Conservación de la Vida Silvestre -decreto ejecutivo nro. 40548 del 12 de julio de 2017- se consignó:

“Artículo 9.- Funciones del SINAC. Para los fines de la Ley y este Reglamento, el SINAC tendrá las siguientes funciones:

1. Elaborar y actualizar el Plan Nacional de Vida Silvestre, de acuerdo con las políticas establecidas en la Política Nacional de Biodiversidad y su Estrategia, el Plan Nacional de Desarrollo y los instrumentos de planificación institucional.

2. Otorgar las licencias, permisos u autorizaciones que señalan la LCVS y este reglamento 3. Velar por la correcta aplicación y el cumplimiento del ordenamiento jurídico vigente sobre vida silvestre.

4. Elaborar las regulaciones para la caza de control y subsistencia, conservación y aprovechamiento sostenible de la flora y fauna silvestre cuando corresponda.

5. Ejercer la focalía (autoridad administrativa) del país ante CITES y velar por su correcta aplicación y cumplimiento, según lo establecido en la LCVS y el ámbito de este reglamento.

6. Elaborar y mantener actualizado el Sistema Nacional de Información sobre Vida Silvestre.

7. Elaborar y revisar los Protocolos que se establecen en este reglamento.

8. Convocar y coordinar el trabajo de la Comisión Nacional de Vida Silvestre.

9. Elaborar material didáctico que dé a conocer la misión, objetivos y programas del SINAC sobre la conservación y uso sostenible de la vida silvestre.

10. Las demás que le asigne el CONAC o el Ministro de Ambiente y Energía.

Artículo 10.- Funciones de las Áreas de Conservación. Para los fines de la Ley y este Reglamento, las Áreas de Conservación tendrán las siguientes funciones:

1. Participar en la elaboración de los programas y proyectos institucionales, y ejecutarlos de acuerdo con los procedimientos y disposiciones establecidas.

2. Coordinar la ejecución de las actividades con otras dependencias competentes.

3. Informar y coordinar con la Secretaría Ejecutiva del SINAC sobre la ejecución de programas y proyectos a nivel regional, relacionados con vida silvestre.

4. Otorgar y supervisar permisos de uso y resoluciones administrativas para el funcionamiento de sitios de manejo, así como la emisión de las licencias de caza de control, aprovechamiento de vida silvestre con o sin fines comerciales y otros actos propios de su gestión.

5. Participar en evaluaciones ecológicas rápidas y de los estados poblacionales de especies de vida silvestre y emitir las recomendaciones que correspondan, en coordinación con la Secretaría Ejecutiva del SINAC.

6. Ordenar las medidas de manejo tendientes a la protección y aprovechamiento sostenible de las especies en peligro de extinción, y fomentar la realización de investigaciones sobre estas especies en coordinación con la Secretaría Ejecutiva del SINAC.

7. Revisar, evaluar y aprobar o rechazar los planes de manejo de los sitios de manejo, y velar por su efectivo cumplimiento.

8. Fomentar la investigación científica en materia de vida silvestre y publicación de documentos técnico-científicos, velando por el cumplimiento de la legislación nacional. Se promoverán con especial énfasis las investigaciones sobre especies que requieren un manejo técnico apropiado para fomentar la convivencia con las actividades humanas, y sobre métodos de manejo de poblaciones de vida silvestre con crecimiento anormal o problemáticas propias, en coordinación con la Secretaría Ejecutiva del SINAC.

9. Analizar y evaluar los impactos causados por individuos de especies de fauna silvestre en actividades agropecuarias.

10. Llevar a cabo programas de educación ambiental formal y no formal para concientizar a las comunidades sobre el manejo apropiado de flora y fauna silvestres, de conformidad con las prioridades institucionales.

11. Mantener actualizado el Sistema Nacional de Información sobre Vida Silvestre, con base en las gestiones que realicen.

12. Realizar actividades de prevención, control y protección, y atender las denuncias según corresponda.

13. Velar por el correcto cumplimiento de la legislación en materia de vida silvestre.

14. Apoyar a la Secretaría Ejecutiva en los procesos que corresponda.

15. Otras que le asigne la legislación vigente, el Director Ejecutivo del SINAC, el CONAC o el Ministro de Ambiente y Energía”.

Por su parte, la Ley de Biodiversidad dispone:

“ARTÍCULO 61.- Protección de las áreas silvestres protegidas El Estado debe poner atención prioritaria a la protección y consolidación de las áreas silvestres protegidas estatales que se encuentran en las Áreas de Conservación. Para estos efectos, el Ministerio de Ambiente y Energía en coordinación con el Ministerio de Hacienda, deberá incluir en los presupuestos de la República, las transferencias respectivas al fideicomiso o los mecanismos financieros de áreas protegidas para asegurar, al menos, el personal y los recursos necesarios que determine el Sistema Nacional de Áreas de Conservación para la operación e integridad de las áreas silvestres protegidas de propiedad estatal y la protección permanente de los parques nacionales, las reservas biológicas y otras áreas silvestres protegidas propiedad del Estado”.

Ahora, en el numeral 9 de la ley nro. 9892 se le atribuye al Sistema Nacional de Áreas de Conservación lo siguiente: “(…) para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación (Sinac). Ante requerimiento de la Junta Directiva, dichas entidades brindarán sus criterios de la forma más expedita posible”.

Empero, en primer término, lo anterior no implica que la Junta Directiva del Parque Nacional Isla San Lucas esté obligada a pedir el criterio técnico del SINAC. En realidad, la consulta al SINAC está prevista como una facultad de la Junta Directa, que bien podría no ejercitarla.

Por otro lado, adviértase que la protección del ambiente recae en el Estado como un todo, por lo que su adecuado ejercicio requiere de la ejecución de esfuerzos coordinados entre los diversos Poderes, órganos y entes, entre otros. Ejemplo de esto se ve en la sentencia nro. 2019017397 de las 12:54 horas del 11 de setiembre de 2019, en la que se resolvió:

“X.- Sobre la rectoría del Ministerio de Ambiente y Energía, así como la necesaria coordinación de las diferentes instituciones en materia ambiental.- En el considerando anterior se afirmó que las instituciones del Estado son las primeras llamadas a cumplir con la legislación tutelar ambiental, sin que exista justificación alguna para eximirlas del cumplimiento de requisitos ambientales. Por consiguiente, en el presente apartado se explicará la rectoría del Ministerio de Ambiente y Energía en la materia ambiental. Además, se expondrá la necesaria coordinación que debe existir entre las diferentes instituciones del Estado. En este sentido, este Tribunal, en la sentencia número 2004-8928 de las 16:37 horas del 18 de agosto de 2004, ha mencionado que resulta evidente que el Estado central es el ente primariamente encomendado para la defensa del medio ambiente, lo que es reafirmado en la Ley Orgánica del Ambiente, número 7554 del 04 de octubre de 1996, que delega en el Ministerio de Ambiente y Energía buena parte de las competencias en esta materia, sin descargar a los otros entes públicos de sus responsabilidades en este campo.

Igualmente, para el caso en cuestión es importante aclarar que el Ministerio de Ambiente y Energía también tiene la potestad de administrar los refugios nacionales y los humedales, lo cual se deriva además de los artículos 82 y 84 de la Ley de la Conservación Silvestre, 32 de la Ley Orgánica del Ambiente, 13 de la Ley Forestal, y 58 de la Ley de Biodiversidad (véase la sentencia número 2004-8928 de las 16:37 horas del 18 de agosto de 2004).

Ahora bien, aunque la rectoría en materia ambiental recae en el Ministerio de Ambiente y Energía, es menester aclarar que el Estado, en sentido amplio, es el garante en la protección y tutela del medio ambiente y los recursos naturales (véase la sentencia número 6922-2010 de las XX del XX). Es decir, si bien el Estado central delega la defensa del ambiente en el Ministerio en cuestión, esto no elimina la responsabilidad que tienen los demás (sic) instituciones del Estado en esta materia. Al respecto, esta Cámara Constitucional también ha expresado la necesidad de que exista una coordinación entre las dependencias públicas que busque garantizar la protección del ambiente. De esta forma, mencionó que:

“En diversas oportunidades, la jurisprudencia constitucional ha indicado que la protección del ambiente es una tarea que corresponde a todos por igual, es decir, que existe una obligación para el Estado –como un todo- de tomar las medidas necesarias para proteger el medio, a fin de evitar grados de contaminación, deforestación, extinción de flora y fauna, uso desmedido o inadecuado de los recursos naturales, que pongan el (sic) peligro la salud de los administrados. En esta tarea, por institución pública, debe entenderse comprendida tanto la Administración Central – Ministerios, como el Ministerio del Ambiente y Energía y el Ministerio de Salud, que en razón de la materia, tienen una amplia participación y responsabilidad en lo que respecta a la conservación y preservación del ambiente; los cuales actúan, la mayoría de las veces, a través de sus dependencias especializadas en la materia, como por ejemplo, la Dirección General de Vida Silvestre, la Dirección Forestal, y la Secretaría Técnica Nacional Ambiental (SETENA); así como también las instituciones descentralizadas, caso del Instituto Nacional de Vivienda y Urbanismo, el SENARA, el Instituto Costarricense de Turismo o el Instituto Costarricense de Acueductos y Alcantarillados; tarea en la que por supuesto tienen gran responsabilidad las municipalidades, en lo que respecta a su jurisdicción territorial.

Es por ello, que podría pensarse que esta múltiple responsabilidad provocaría un caos en la gestión administrativa, lo cual no es cierto, por cuanto a fin de evitar la coexistencia simultánea de esferas de poder de diferente origen y esencia, la duplicación de los esfuerzos nacionales y locales, así como la confusión de derechos y obligaciones entre las diversas partes involucradas, es que se hace necesario establecer una serie de relaciones de coordinación entre las diversas dependencias del Poder Ejecutivo y las instituciones descentralizadas, y entre éstas con las municipalidades, a fin de poder llevar a cabo las funciones que les han sido encomendadas (…)” (véase sentencia número 2009-000139 de las 08:53 horas del 13 de enero de 2009).

En síntesis, aunque el Estado delega en el Ministerio de Ambiente y Energía buena parte de las competencias en esta materia, siendo que este Ministerio ostenta la función de rectoría en materia ambiental y, por tanto, es responsable de emitir las políticas de protección ambiental, manejo y uso sostenible de los recursos naturales; también es cierto que existe la necesidad de coordinar entre las dependencias públicas que garanticen la protección del ambiente. Por ende, las instituciones del Estado, Poder Ejecutivo, Poder Legislativo, Poder Judicial, Municipalidades, así como cualesquiera otras instituciones están, todas ligadas a la legislación ambiental o aquella que esté relacionada con la protección del medio ambiente (véase la sentencia número 8928 de las XX del XX y la sentencia número 8713-2008 de las 09:06 horas del 23 de marzo de 2006)” (el resaltado fue añadido).

En cuanto a la isla San Lucas, en la sentencia nro. 2011003741 de las 14:37 horas del 23 de marzo de 2011, este Tribunal se refirió a la necesidad de coordinar esfuerzos en aras de resguardar el ambiente y el patrimonio cultural:

“I.- En el presente recurso de amparo se reclama la violación de los derechos protegidos en los artículos 50 y 89 de la Constitución Política, por el estado deplorable de las instalaciones del antiguo penal situado en la Isla San Lucas. De acuerdo con el actor, ni el Ministerio de Ambiente, Energía y Telecomunicaciones, ni el Ministerio de Cultura y Juventud ni la Municipalidad del Cantón de Puntarenas, han tomado las medidas necesarias para mantener en buenas condiciones las instalaciones aludidas. Esta situación, según el promovente, es ilegítima y lesiona el Derecho de la Constitución.

II.De la prueba documental allegada a los autos, como de los informes rendidos por el Ministro de Ambiente, Energía y Telecomunicaciones, Teófilo de la Torre Agüero, el Ministro de Cultura y Juventud, Manuel Obregón López, el Director a.i. del Centro de Investigación y Conservación del Patrimonio Cultural, Javier Carvajal Molina, la Directora Ejecutiva del Sistema Nacional de Áreas de Conservación, Giselle Méndez Vega y el Alcalde Municipal del Cantón Central de Puntarenas, Juan Luis Bolaños Alvarado –que son dados bajo la solemnidad del juramento, con oportuno apercibimiento de las consecuencias, incluso penales, previstas en el artículo 44 de la Ley de la Jurisdicción Constitucional– se tiene por acreditado que:

a. las edificaciones de la Isla San Lucas se encuentran en muy mal estado, por la omisión de las autoridades de la Municipalidad del Cantón de Puntarenas, el Ministerio de Cultura y Juventud y el Ministerio de Ambiente, Energía y Telecomunicaciones de tomar las medidas necesarias para conservar las instalaciones del lugar (ver informe a folio 83).

III.De la relación de hechos probados de esta sentencia, la Sala considera que la omisión de las autoridades recurridas de tomar las medidas necesarias y de ejecutar las acciones pertinentes para restaurar, preservar y mantener en buenas condiciones las edificaciones de la Isla San Lucas es ilegítima y vulnera los derechos protegidos en los artículos 50 y 89 de la Constitución Política, razón por la cual lo procedente es declarar con lugar el recurso en todos sus extremos, contra todas las autoridades accionadas. En efecto, con independencia de la discusión relativa a la administración de los bienes de la Isla San Lucas, sobre la cual en esta oportunidad el Tribunal Constitucional omite todo pronunciamiento (en cuanto se trata de un extremo que desborda por completo la naturaleza sumaria de este proceso de amparo) a todas luces es evidente la obligación de todas las autoridades recurridas (incluyéndose desde luego la Municipalidad del Cantón de Puntarenas) de proteger las bellezas naturales, conservar y desarrollar el patrimonio histórico y artístico de la Nación, en estricto apego al derecho protegido en el artículo 89 Constitución Política.

IV.En el caso presente, sin embargo, es evidente que el deterioro de las instalaciones de la Isla San Lucas responde, única y exclusivamente, a la omisión que se ha tenido por demostrada en este proceso de amparo con respecto a todas las autoridades recurridas, las cuales deberán coordinar a futuro sus actuaciones para preservar los recursos y el patrimonio histórico de ese sitio. Queda de manifiesto que la situación impugnada es ilegítima y lesiona el Derecho de la Constitución, razón por la cual lo procedente es declarar con lugar el amparo, no sin antes advertir a los recurridos, con sustento en lo dispuesto por el artículo 50 de la Ley de la Jurisdicción Constitucional, no incurrir a futuro en los actos u omisiones que dieron mérito a la acogida del recurso.

Por tanto:

Se declara con lugar el recurso y, en consecuencia, se ordena al Ministro de Ambiente, Energía y Telecomunicaciones, Teófilo de la Torre Agüero, al Ministro de Cultura y Juventud, Manuel Obregón López, al Director a.i. del Centro de Investigación y Conservación del Patrimonio Cultural, Javier Carvajal Molina, a la Directora Ejecutiva del Sistema Nacional de Áreas de Conservación, Giselle Méndez Vega y al Alcalde Municipal del Cantón Central de Puntarenas, Juan Luis Bolaños Alvarado, que adopten inmediatamente y de manera conjunta las medidas necesarias y que ejecuten las acciones pertinentes a fin de proteger, restaurar y preservar las edificaciones de la Isla San Lucas, de lo cual se deberá rendir un informe a la Sala Constitucional, dentro del plazo improrrogable de un año a partir de la notificación de esta sentencia. Lo anterior bajo apercibimiento de las consecuencias, incluso penales, que se desprenden por la desobediencia a las órdenes dictadas por este Tribunal Constitucional, artículo 71 de la Ley de la Jurisdicción Constitucional. Se condena la (sic) Estado y a la Municipalidad del Cantón de Puntarenas al pago de costas, daños y perjuicios, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. Notifíquese esta sentencia a los funcionarios indicados en forma personal. Comuníquese”.

Adviértase que la sentencia transcrita lo que ordena es la coordinación de esfuerzos entre las autoridades recurridas a los efectos de preservar el patrimonio cultural y el ambiente, lo cual no implica per se que la administración de la isla San Lucas deba recaer específicamente en un órgano conformado por las partes accionadas supramencionadas.

Por el contrario, resulta de importancia resaltar que, concerniente a la preservación de la objetividad y el sustento técnico en la toma de decisiones de determinados órganos en función de la materia que atienden, esta Cámara dispuso en la sentencia nro. 2016007123 de las 11:00 horas del 25 de mayo de 2016:

“VII.- Sobre la Comisión para la Regulación y Control de la Publicidad Comercial de las Bebidas con Contenido Alcohólico (la Comisión). De conformidad con el artículo 12 de la Ley Nº 9047 "Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico", el Ministerio de Salud tiene a su cargo la regulación y el control de todo tipo de publicidad comercial relacionada con la comercialización de bebidas con contenido alcohólico, efectuada por cualquier medio de comunicación a título gratuito o mediante pago. Para dar cumplimiento a tal cometido, se emitió el Decreto impugnado y se creó la Comisión para la regulación y control de la publicidad comercial de las bebidas con contenido alcohólico, cuyo objetivo es precisamente revisar, aprobar o improbar y monitorear la publicidad comercial sobre bebidas con contenido alcohólico (numeral 4 del Decreto). Según el ordinal 5 impugnado, esta Comisión está integrada por 5 representantes titulares y sus respectivos suplentes; de ellos, 3 son funcionarios del Ministerio de Salud de libre escogencia por el Ministro de Salud, uno es representante de la UCCAEP, y otro lo es de las agencias publicitarias.

Se dispone, además, que los integrantes deben tener competencia técnica en temas de salud pública, adicciones, derecho, publicidad y género. Asimismo, esta Comisión, en caso de tener dudas razonables en un caso, puede solicitar el criterio de expertos. Los miembros de la Comisión duran en sus cargos 4 años, pudiendo ser reelectos por períodos iguales. En particular, los representantes del Ministerio de Salud cesan en sus cargos cuando dejen de ser funcionarios de la institución o cuando la autoridad superior así lo decida. La presidencia y secretaría de este órgano están a cargo de personas funcionarias del Ministerio de Salud y permanecen en sus cargos dos años, pudiendo ser reelectas. Ahora bien, de conformidad con el artículo 8, el quórum para sesionar es de tres miembros. Sus resoluciones se adoptan por mayoría absoluta y el presidente tiene voto de calidad en caso de empate. Esta Comisión debe pronunciarse sobre la aprobación o improbación del material de propaganda o proyectos del mismo que se le formulen, dentro del plazo de un mes calendario, contado a partir del día hábil siguiente de la presentación de la solicitud. Asimismo, contra los acuerdos de la Comisión, caben los recursos de revocatoria con apelación en subsidio.

El accionante cuestiona que la Comisión esté conformada por sujetos tanto de derecho público como de derecho privado, por tratarse de una potestad pública indelegable, con el agravante de que por el quórum establecido, prevalezcan en sus decisiones, intereses privados meramente comerciales que sean incompatibles con la función pública asignada a tal órgano. Sobre este particular, coincidió con el accionante la postura de la Procuraduría General de la República, al señalar que la integración de la Comisión encargada de revisar, aprobar o improbar y monitorear la publicidad comercial sobre bebidas con contenido alcohólico, no puede delegarse en los dos representantes de la UCCAEP y las agencias publicitarias, pues ellos tienen interés directo en la materia sobre la cual ejercen el control, violándose seriamente los principios de objetividad, transparencia e imparcialidad que deben regir en la función pública y que la Sala Constitucional ha elevado a rango constitucional, derivado de lo dispuesto en el artículo 11 de la Constitución Política.

Por su parte, los representantes de la UCCAEP y las asociaciones apersonadas a este proceso indicaron que la integración de la Comisión reflejaba el principio de participación ciudadana, sin que ello influyera en la imparcialidad de los miembros de la Comisión. Además, explicaron que dichos miembros enriquecían la labor de la Comisión con su experiencia.

Como punto de partida, se retoma que la ley Nº 9047 "Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico" dispone en el numeral 12 que el Ministerio de Salud tiene a su cargo la regulación y el control de todo tipo de publicidad comercial relacionada con la comercialización de bebidas con contenido alcohólico, efectuada por cualquier medio de comunicación a título gratuito o mediante pago. Sin duda alguna, se trata de una potestad pública conferida por el legislador a este Ministerio en concreto. Conviene transcribir nuevamente el artículo referido:

“ARTÍCULO 12.- Publicidad comercial El Ministerio de Salud tendrá a su cargo la regulación y el control de todo tipo de publicidad comercial relacionada con la comercialización de bebidas con contenido alcohólico, efectuadas por cualquier medio de comunicación a título gratuito o mediante pago. Todo control se realizará de previo a la divulgación de la publicidad.

Se prohíbe la utilización de marcas o nombres de bebidas con contenido alcohólico en publicidad, como rotulación de uniformes, medios de transporte utilizados para competencias y artículos deportivos de todo equipo, asociación, federación y liga deportiva, así como en actividades recreativas o culturales dirigidas a menores de edad.” Como primer punto, se subraya un elemento que es por sí mismo notorio. La escogencia del legislador del Ministerio de Salud como instancia encargada de la regulación y control de la publicidad relacionada con bebidas alcohólicas no es aleatoria. Todo lo contrario, su selección responde a que este Ministerio es el encargado de la política nacional de salud, según señala su ley orgánica. Debido a la incidencia que el consumo de bebidas alcohólicas puede tener en la población, la decisión del legislador fue otorgar competencia a dicho Ministerio sobre la publicidad relacionada con ellas.

Así como el primer párrafo de la norma permite deducir que el tema del control publicitario de bebidas alcohólicas es de salud pública, el segundo deja en claro que la protección de las personas menores de edad deberá primar en el ejercicio de dicho control.

Este punto -la protección de las personas menores de edad- se observa en múltiples numerales de la misma ley N° 9047, como el artículo 9 en sus incisos a), b), d), e) y g); o los ordinales 13 y 16, relacionados con la venta de bebidas con contenido alcohólico a menores de edad y su permanencia en establecimientos que vendan dichas bebidas, entre otros temas.

Asimismo, la protección de los menores de edad en esta materia se encuentra en el Código de la Niñez y la Adolescencia, cuyo numeral 22 señala:

“Artículo 22°- Mensajes restringidos.

Los medios de comunicación colectiva se abstendrán de difundir mensajes atentatorios contra los derechos de la persona menor de edad o perjudiciales para su desarrollo físico, mental o social.

Los programas, la publicidad y los demás mensajes que se difundan por radio y televisión, se ajustarán a la audiencia correspondiente. Mediante decreto ejecutivo se reglamentará lo relacionado con los horarios que regirán para programas no aptos para menores de edad.” (Énfasis agregado).

A nivel internacional, la Convención sobre los Derechos del Niño también prevé la protección de la persona menor de edad frente a los medios de comunicación. Su ordinal 17 reza:

“Artículo 17 Los Estados Partes reconocen la importante función que desempeñan los medios de comunicación y velarán por que el niño tenga acceso a información y material procedentes de diversas fuentes nacionales e internacionales, en especial la información y el material que tengan por finalidad promover su bienestar social, espiritual y moral y su salud física y mental. Con tal objeto, los Estados Partes: (…)

• e)Promoverán la elaboración de directrices apropiadas para proteger al niño contra toda información y material perjudicial para su bienestar, teniendo en cuenta las disposiciones de los artículos 13 y 18.” (Énfasis agregado).

No está de más recordar que ambos -el derecho a la salud y la protección de la persona menor de edad- encuentran protección constitucional y convencional, según ha reconocido esta Sala.

En resumen, el numeral 12 impugnado procura la regulación y el control de la publicidad para la comercialización de bebidas con contenido alcohólico con el fin de proteger la salud pública y a los menores de edad, evitando que los intereses relacionados con dichas bebidas prevalezcan sobre ellos.

Ahora bien, la labor de regular y controlar dicha publicidad recae en la Comisión, por disposición del Decreto impugnado. Según lo expuesto previamente, las potestades estatales deben desplegarse siguiendo criterios de objetividad, pues ello conlleva no solo el sometimiento de la Administración al principio de legalidad, sino también la protección de los derechos de los particulares frente a las potestades estatales. En el caso de marras, la objetividad de la Comisión reviste particular importancia, pues ella incide en intereses de especial protección a nivel constitucional y convencional, como ha sido resaltado en los párrafos anteriores. La objetividad de la Comisión en el ejercicio de sus labores solo puede garantizarse a través de una integración que refleje dicha objetividad y la ausencia de conflictos de intereses en las tomas de decisiones.

Así, a efectos de resolver la controversia planteada, es necesario analizar si la integración de la Comisión, de cara al principio de objetividad en relación con el principio del interés superior del menor, resulta consecuente con ese mandato legal y es la más adecuada en aras de la protección de los intereses definidos por el legislador.

Según se apuntó, los integrantes de las asociaciones coadyuvantes pasivas señalaron que la inclusión de un representante de las agencias publicitarias y uno de la UCCAEP en la composición de la Comisión es una expresión del principio de participación ciudadana, que tiene por finalidad enriquecer la labor de la misma con el conocimiento especializado de dichos representantes.

Sin embargo, ante el argumento supracitado, no menos cierto es que tanto la UCCAEP como las agencias publicitarias representan instancias cuyos fines primordiales están referidos con particular énfasis al fomento del sector empresarial y la actividad publicitaria, respectivamente, lo cual en determinadas situaciones puede colisionar con la protección de la salud pública o al interés superior de la persona menor de edad, que son esenciales fines del control publicitario establecido por la ley N° 9047.

Según se dijo párrafos atrás, el control de la publicidad tiene como propósito anteponer la salud pública y el bienestar de los menores de edad a cualquier otro tipo de interés, incluyendo los mercantiles de las empresas involucradas en la producción y comercialización de bebidas alcohólicas. Ahora bien, vistos los fines de dicha ley, resulta un contrasentido que su reglamento otorgue una importante intervención en ese control a la UCCAEP y las agencias publicitarias, pues ellas representan -precisamente- a las empresas de producción y comercialización de bebidas con contenido alcohólico. Se nota así una clara contradicción, pues las instancias que deben ser controladas y fiscalizadas respecto de esta materia en particular, tan sensible a los efectos de resguardar a los menores, tienen la posibilidad de injerir en la decisión del órgano encargado de su control y fiscalización, sin que se pueda derivar de la ley N° 9047 que esa fuera la intención del legislador.

Este patente conflicto de intereses y su incidencia en el derecho a la salud y el interés superior de las personas menores de edad justifican que la Sala intervenga en aras de restablecer el propósito original del legislador.

La Sala no desconoce que la posición de representantes de la UCCAEP y las agencias publicitarias puede ser considerada por la Comisión, por el conocimiento, experiencia y perspectiva de sus respectivos campos. Sin embargo, lo cierto es que existe una manera más razonable de alcanzar este objetivo (sin que se afecte el interés superior del menor y el principio de objetividad en cuanto a la protección del derecho a la salud) que ha sido prevista por el mismo reglamento a la ley N° 9047 en su ordinal 5 in fine:

“En caso de existir dudas razonables, la comisión podrá solicitar el criterio de expertos.” Nótese que una diferencia sustancial entre el criterio de uno de esos expertos y el de un miembro de la Comisión, radica en la capacidad del último de ejercer el voto. Si la participación de los representantes de la UCCAEP y las agencias publicitarias se diera únicamente en los términos de la norma antedicha, esto es sin que contaran con voto, se lograría rescatar el valor de su experiencia especializada, sin poner en entredicho la objetividad de dicho órgano colegiado.

En otros términos, si se examina la razonabilidad de la medida, en particular su necesidad, se concluye que es innecesaria la participación con voto en la Comisión de los representantes de la UCCAEP y las agencias publicitarias. La necesidad significa que entre varias medidas igualmente aptas para alcanzar un objetivo, la autoridad competente haya elegido aquella que afecta lo menos posible la esfera jurídica de las personas. Haciendo una aplicación mutatis mutandis, se observa que la participación de dichos representantes, en calidad de criterio experto, lograría el objetivo de poner su pericia al alcance de la Comisión, sin poner en entredicho la objetividad que ella debe mantener al velar por la protección de la salud y el interés superior del menor.

No está de más remitir al informe de la Presidenta de la Comisión, quien indicó que han debido consultar en calidad de expertos a funcionarios del mismo Ministerio de Salud y del IAFA (órgano desconcentrado de dicho Ministerio). Esta necesidad sería paliada, si la Comisión se integrara con funcionarios de dichas instancias.

Tocante a este tema, el representante de la UCCAEP remitió al ordinal 5 (…Las personas que integran la Comisión deben tener competencia técnica en los temas de salud pública, adicciones, derecho, publicidad y de género…) para enfatizar la necesidad de una integración compuesta por expertos multidisciplinarios. Sin embargo, el análisis de dicha norma a la luz de los fines de la regulación (protección de la salud y el interés superior del menor) más bien invitan a cuestionar el marcado peso que la integración de la Comisión otorga al criterio de los representantes del sector empresarial y no así a otras instancias que podrían tener un claro interés en el tema, poseer conocimientos especializados en las materias señaladas por dicha norma (salud pública, adicciones, derecho, publicidad y de género) y contribuir al equilibrio de los intereses en juego, como el Patronato Nacional de la Infancia, el Instituto de Alcoholismo y Farmacodependencia, etc. El resguardo del artículo 9 constitucional no conlleva la viabilidad ciega de cualquier tipo de participación ciudadana, pues ello desconoce la necesidad de tutelar otros intereses de relevancia constitucional.

Por último, la Sala observa que el decreto impugnado contraviene la norma legal al otorgar competencias a la UCCAEP y a las agencias publicitarias en el nombramiento de miembros de la Comisión. Este Tribunal nota que dichos representantes se encuentran excluidos de las causales de cesación establecidas en el numeral 6:

“Artículo 6º-Los miembros de la Comisión durarán en sus cargos 4 años, pudiendo ser reelectos por periodos iguales, los representantes del Ministerio de Salud cesarán en sus cargos cuando dejen de ser funcionarios de la institución o cuando la autoridad superior así lo decida.” (El subrayado es agregado) Interesa a la Sala resaltar que solo los funcionarios del Ministerio que integran la Comisión podrían ser removidos cuando una autoridad superior así lo decida. Lo anterior significa, en el fondo, que la UCCAEP y las agencias publicitarias pueden imponer sus representantes al Ministerio –instancia encomendada por ley para la fiscalización y regulación de la publicidad de las bebidas con contenido alcohólico- sin que ellos puedan ser removidos por una autoridad superior de ese Ministerio. Este hecho representa un vaciamiento parcial del contenido de la ley. Si la ley otorgó la competencia al Ministerio de Salud para las tareas señaladas, la integración de una Comisión por personas completamente ajenas al Ministerio significa incumplimiento material del precepto legal.

Verbigracia, la Comisión podría formalmente incluirse en la estructura del Ministerio, pero si hipotéticamente sus cinco miembros provinieren de otras instancias, se vaciaría materialmente (y por completo) el contenido de la ley. En este caso, el vaciamiento del contenido ha sido parcial (solo dos miembros de cinco representan a instancias sujetas de control); aun así, por su trascendencia a la luz del interés superior del menor y el principio de objetividad en relación con el derecho a la salud, el mismo no supera el control de constitucionalidad que ejerce esta Sala.

En consecuencia, se declaran inconstitucionales las frases “cinco” y “un representante de la UCCAEP y otro de las agencias publicitarias” del artículo 5 del Reglamento impugnado. Según se indicó en los párrafos anteriores, la posición de los representantes de la UCCAEP y de las agencias publicitarias –así como el de otras instancias relacionadas con el tema como el Patronato Nacional de la Infancia, el Instituto de Alcoholismo y Farmacodependencia, etc.- puede ser considerado en la labor de la Comisión. En estos términos es que la Sala estima razonable eliminar el voto de dichos representantes en la Comisión, mas mantener su voz en la misma. Esta situación provisional se mantendrá por un plazo de 6 meses, mismo que se otorga al Poder Ejecutivo para que reforme el artículo 5 en los términos señalados en esta sentencia.

En cuanto al numeral 8, la Sala observa que él únicamente determina la formación del quórum a lo interno de la Comisión, por lo que solo podría llevar a problemas de constitucionalidad si se mantuviera la vigencia del ordinal 5. Sin embargo, vista la declaratoria de inconstitucionalidad de este último, decae el sustento del alegato en contra del primero, por lo que su constitucionalidad se sostiene (…)” (el énfasis fue agregado).

Esta misma ratio decidendi se recoge en la reciente resolución nro. 2022025307 de las 13:40 horas del 25 de octubre de 2022, esta vez específicamente en materia de tutela al ambiente. Así, este Tribunal señaló en el considerando XII de manera unánime:

“XII.- SOBRE LA REFERIDA VIOLACIÓN AL DERECHO A UN AMBIENTE SANO Y ECOLÓGICAMENTE EQUILIBRADO, EL PRINCIPIO DE IGUALDAD, PRINCIPIO DE JERARQUÍA DE LAS NORMAS, DE INDEROGABILIDAD SINGULAR DEL REGLAMENTO Y DE OBJETIVACIÓN DE LA TUTELA AMBIENTAL POR EL ARTÍCULO 18 DEL PROYECTO DE LEY CONSULTADO. Consultan los Diputados y Diputadas firmantes si el artículo 18 del proyecto de ley lesiona el derecho al medio ambiente sano y ecológicamente equilibrado por cuanto: a) dispone un trámite prioritario a los proyectos de producción de hidrogeno verde con respecto a la evaluación de viabilidad ambiental, y la forma expedita en que se tramitaría, sin que en esta iniciativa de ley consten los estudios pertinentes que confirmen el trato expedito b) otorga al Ministro de Ambiente y Energía la competencia para determinar el trámite a seguir en relación con la viabilidad ambiental de proyectos relacionados con el hidrógeno verde, cuando esta es una función que corresponde a la Secretaria Técnica Nacional Ambiental (SETENA), como dispone la Ley Orgánica del Ambiente, que crea la secretaría como órgano de desconcentración máxima del Ministerio de Ambiente y Energía (MINAE).

En atención de lo señalado consideran que la norma en consulta podría ir en contra del principio de jerarquía. Ante la interdisciplinariedad que caracteriza la materia ambiental, los diversos repartos administrativos han de ejercer sus competencias singulares en forma coordinada para la mejor satisfacción del interés público, especialmente tratándose del derecho fundamental a un ambiente sano y ecológicamente equilibrado; no obstante, esto no equivaldría a que el Ministro de Ambiente y Energía sustituya las competencias exclusivas otorgadas a SETENA, pues, la competencia de diseñar, aplicar y aprobar las evaluaciones de impacto ambiental no es del ministro, sino que las evaluaciones de impacto ambiental son una competencia que corresponde de manera desconcentrada a la Secretaria Técnica Nacional Ambiental. Además, alegan que se estaría desaplicando tal norma para un caso particular o específico, como sería el caso del hidrógeno verde y su viabilidad, lo que podría implicar una violación al principio de inderogabilidad singular de la norma para el caso concreto.

Por otra parte, consideran riesgoso incluir procesos acelerados de este trámite en el proyecto de cita. Reiteran que el artículo cuestionado dispone que el trámite a seguir, en cuanto a viabilidad, será el que dictamine el jerarca del Ministerio de Ambiente y Energía, lo que podría ir en contra del principio de objetivación de la tutela ambiental, pues sería el ministro quien tome una decisión de gran envergadura para el ambiente, pese que existe un órgano técnico que tiene encomendada dicha función. Refieren a la sentencia número 14293-2005, de la Sala Constitucional que señaló que el principio de objetivación de la tutela ambiental es un derivado de lo dispuesto en los mencionados artículos 16 y 160 de la Ley General de la Administración Pública, que se traduce en la necesidad de acreditar con estudios técnicos la toma de decisiones en esta materia. c) consultan si el artículo 18 del proyecto consultado lesiona el principio de igualdad porque le da prioridad al hidrogeno verde en relación con similares proyectos de transición energética, que deberían ser considerados en igualdad de condiciones, pues presentan objetivos coincidentes y afines al presente proyecto de ley, como el proyecto de "Ley para la promoción y regulación de recursos energéticos distribuidos a partir de fuentes renovables", expediente legislativo nro. 22.009, y el proyecto de "Ley para la Contribución a la Transición Energética”, expediente legislativo nro. 21.343.

Además la preponderancia no se basa en algún estudio técnico que ampare dicho trato en relación con normativa de igual relevancia, por lo que el artículo en consulta podría ir en contra del principio de igualdad y no discriminación. Alegan que no existen análisis y estudios técnicos que justifiquen la determinación de interés público del proyecto de producción de hidrógeno verde, cuando, tal y como se ha indicado anteriormente, existen otras iniciativas con propósitos idénticos que no se les da ese mismo tratamiento. Reiteran que existe ausencia de análisis y estudios de carácter técnicos y científicos que determinen la preponderancia del hidrogeno verde en comparación con otras alternativas energéticas como las señaladas.

La norma consultada dispone lo siguiente, “ARTÍCULO 18.- Viabilidad ambiental. Debido al interés público que revisten los proyectos de producción de hidrógeno verde y que requieren una viabilidad ambiental, cuya revisión se dará en forma expedita y con una priorización, el trámite a seguir será el que dictamine el jerarca del Ministerio de Ambiente y Energía (Minae) de acuerdo con la categorización de la actividad, la obra o el proyecto. Una vez identificado el tipo de evaluación ambiental a realizar, se deberá indicar dentro del nombre del proyecto, en el formulario correspondiente, que se trata de un proyecto con prioridad, de tal forma que el sistema de ingreso del expediente pueda priorizar el trámite. Independiente de lo anterior, la evaluación de impacto ambiental o el permiso que requiera el proyecto deberá ser resuelto en un máximo de sesenta días naturales. “ A fin de analizar los extremos consultados debe indicarse en primer término que, tal y como se ha sostenido repetidamente en este pronunciamiento, la Asamblea Legislativa en el ejercicio de la función de dictar leyes en sentido formal y material, goza de una amplia libertad de conformación para desarrollar el programa constitucional fijado por el Poder Constituyente.

El margen de maniobra en cuanto a la materia normada se ha denominado, también, discrecionalidad legislativa, entendida como la posibilidad que tiene ese órgano, ante una necesidad determinada del cuerpo social, de escoger la solución normativa o regla de Derecho que estime más justa, adecuada e idónea para satisfacerla, dentro del abanico o pluralidad de opciones políticas que ofrece libremente el cuerpo electoral a través del sistema de representación legislativa. Claro está que dicha facultad no es irrestricta, sino que debe observar los preceptos, valores y principios constitucionales. En ese sentido, la declaratoria de interés público de las actividades económicas destinadas a la investigación, producción, transformación, almacenamiento, transporte, comercialización, suministro, uso final y exportación del hidrógeno verde, es una manifestación del principio de libre configuración del legislador, como se desarrolló en el considerando VII de este pronunciamiento (…)

Por otra parte, se consulta la constitucionalidad del artículo 18 del proyecto por infracción al numeral 50 de la Constitución Política porque indica que en los proyectos que requieran viabilidad ambiental “el trámite a seguir será el que dictamine el jerarca del Ministerio de Ambiente y Energía (Minae) de acuerdo con la categorización de la actividad, la obra o el proyecto. “. A fin de contestar ese aspecto, es preciso indicar que la Ley Orgánica del Ambiente, N°7554 del 4 de octubre de 1995, en desarrollo del artículo 50 de la Constitución Política y como medio de resguardo o aseguramiento del principio precautorio, el preventivo y el de objetivación del derecho al ambiente, establece la competencia técnica de valoración científica del impacto ambiental de las diversas conductas y proyectos desarrollados por el ser humano. Es en ese sentido que dicha legislación confiere esa competencia especializada a un órgano técnico denominado Secretaría Técnica Nacional Ambiental, como órgano de desconcentración máxima del Ministerio del Ambiente y Energía.

Congruente con esa finalidad, se le asigna el propósito fundamental de armonizar el impacto ambiental con los procesos productivos (artículo 83). Para ello, la ley le confiere la potestad de analizar las evaluaciones de impacto ambiental y resolverlas dentro de los plazos previstos por la Ley General de la Administración Pública y recomendar las acciones necesarias para minimizar el impacto sobre el medio, así como las técnicamente convenientes para recuperarlo. Por otra parte, el artículo 17 la Ley de cita asigna a SETENA la competencia de realizar la evaluación de impacto ambiental de las actividades humanas que alteren o destruyan elementos del ambiente o generen residuos, materiales tóxicos o peligrosos, y dispone que su aprobación previa, de parte de este organismo, será requisito indispensable para iniciar las actividades, obras o proyectos. Las leyes y los reglamentos indicarán cuáles actividades, obras o proyectos requerirán la evaluación de impacto ambiental.” El artículo 18 prescribe que la aprobación de las evaluaciones de impacto ambiental, deberá gestionarse ante la Secretaría Técnica Nacional Ambiental y el numeral 19 señala que las resoluciones de la Secretaría Técnica Nacional Ambiental deberán ser fundadas y razonadas, estableciendo su obligatoriedad tanto para los particulares, como para los entes y organismos públicos.

Por otra parte, la Ley Orgánica del Ambiente establece una integración multidisciplinaria y altamente técnica, en la cual habrá un representante del Ministro del Ambiente y Energía, que fungirá como Secretario General. También integran SETENA un representante del Ministerio de Salud, con especialidad en ingeniería sanitaria, un representante del Instituto Costarricense de Acueductos y Alcantarillados, con especialidad en hidrología, un representante del Ministerio de Agricultura y Ganadería, con especialidad en agronomía, un representante del Ministerio de Obras Públicas y Transportes, con especialidad en ingeniería civil, un representante del Instituto Costarricense de Electricidad, con especialidad en desarrollo energético, un representante de las universidades estatales, con especialidad en biología. También se creó la Secretaría Técnica Nacional Ambiental como órgano de desconcentración máxima del Ministerio de Ambiente y Energía, lo que supone según lo dispuesto por el artículo 83 de la Ley General de la Administración Pública, el Ministro, además de estar imposibilitado para avocar competencias del inferior y revisar o sustituir su conducta (ya sea de oficio o a instancia de parte), está igualmente inhibido para dar órdenes, instrucciones o circulares al órgano inferior, de manera que el legislador quiso brindar a la Secretaría Técnica Nacional Ambiental garantías de independencia ante el superior.

Esto se evidencia también al disponer en el artículo 88 que los integrantes de la Secretaría serán funcionarios de tiempo completo, con dedicación exclusiva y prohibición para el ejercicio de sus actividades personales, profesionales o particulares, cuya remoción sólo (sic) podrá ser acordada cuando exista falta grave o incumplimiento de lo que establecen esta u otras leyes.

Debido a todo lo anterior, es criterio de la Sala, que existe una libre configuración del legislador en la creación y asignación de competencias administrativas. Esto supone una discrecionalidad en la definición de instancias administrativas encargadas de realizar determinada función en relación con una materia en particular. Así, la sola asignación de una competencia concreta a una instancia diversa, en sí mismo, no supone un quebranto de orden constitucional. Empero, tratándose del derecho de tutela al ambiente, como consecuencia de los principios preventivo y precautorio, es necesario que una competencia de orden técnico o científico, direccionada a establecer la viabilidad ambiental o bien, el impacto de determinada actividad o proyecto en el ambiente, o en general, definir el tipo de herramienta técnico-científica para ponderar esas incidencias en el medio y los ecosistemas, se asigne a una instancia de naturaleza técnica y no de orden eminentemente político. Lo anterior ya que la ponderación y análisis de tal materia exige e impone que sean consideraciones de orden técnico las que sustenten la habilitación o denegatoria de dicha viabilidad. Si bien las instancias políticas podrían establecer pautas programáticas en torno a dicha materia, en definitiva, la aplicación concreta de la variable científica y técnica conlleva a dicha orientación funcional.

De esa manera, el artículo 18 del proyecto de ley consultado, en cuanto establece que para determinar la viabilidad de los proyectos relacionados con la producción de hidrógeno verde, “el trámite a seguir será el que dictamine el jerarca del Ministerio de Ambiente y Energía (Minae)” desconoce el aludido criterio de especialidad funcional técnica, trasladando la competencia de marras a una instancia política, sin razón objetiva que permita sustentar la desaplicación singular o excepcionalidad a la competencia técnica que sobre dicha materia se ha asignado de manera general a una instancia especializada, según las regulaciones de la Ley Orgánica del Ambiente. Por ende, ese tratamiento es contrario al artículo 50 de la Constitución Política del cual se deriva el principio de regresión ambiental, por cuanto deteriora la idoneidad técnica de las decisiones referidas al tipo de evaluación, control y fiscalización de actividades que impactan, en mayor o menor medida el ambiente, en detrimento del derecho al medio ambiente sano y ecológicamente equilibrado.

Es decir, la asignación competencial al titular de la cartera de Ambiente en relación a (sic) las evaluaciones ambientales relacionadas con el objeto del proyecto de ley de marras constituye una desaplicación singular de las competencias técnicas que han sido asignadas legalmente a una instancia especializada, para en su lugar, transferirlas a una instancia política, por ende, una excepción injustificada a la especialización competencial que garantiza la valoración técnica del potencial impacto ambiental en determinados proyectos de desarrollo humano productivo, análisis que procura satisfacer de manera directa con los principios precautorio y preventivo. Ese tratamiento desaplica la deferencia técnica aludida, creando un trato asimétrico en las evaluaciones ambientales de ese tipo de desarrollos antrópicos, sin que pueda observarse alguna causa legítima que pueda sustentar ese tratamiento.

En este extremo se evacua la consulta en el sentido de que el artículo 18 del proyecto de ley “Ley para la promoción e implementación de una economía de hidrógeno verde en Costa Rica”, es contrario al numeral 50 de la Constitución Política en tanto dispone que “el trámite a seguir será el que dictamine el jerarca del Ministerio de Ambiente y Energía (Minae)” y que “la evaluación de impacto ambiental o el permiso que requiera el proyecto deberá ser resuelto en un máximo de sesenta días naturales” (el destacado fue agregado).

Con base en lo expuesto, es claro que la Sala ha afirmado, que, en el ejercicio de sus competencias, la actuación del Estado debe desplegarse con criterios de objetividad y respetando las reglas unívocas de la ciencia o la técnica, pues ello lleva a una protección más eficaz y eficiente a los derechos fundamentales de las personas de cara a las potestades estatales e, incluso, frente a terceros particulares. En el caso del Estado, el principio de libre configuración del legislador le confiere un amplio espacio para la creación y asignación de competencias administrativas, así como la definición de qué instancias administrativas están a cargo de cierta función en una materia en particular. Empero, cuando se trata de la tutela a un ambiente sano y ecológicamente equilibrado, los principios constitucionales preventivo y precautorio demandan que una competencia de orden técnico o científico direccionada a establecer la viabilidad ambiental o bien el impacto de determinada actividad o proyecto en el ambiente, o en general, definir el tipo de herramienta técnico‑científica para ponderar esas incidencias en el medio y los ecosistemas, sea asignada a una instancia de naturaleza técnica y no de orden eminentemente político.

En efecto, ante los requerimientos de la objetivación de la tutela ambiental, fuertemente consolidados merced a la jurisprudencia constitucional, la ponderación y el análisis de la materia ambiental impone que sean consideraciones de orden técnico, las que sustenten todas aquellas decisiones que involucren una afectación al ambiente, lo que naturalmente abarca aquellas resoluciones, diseños de planes o actuaciones relativas al cualquier plan de manejo en un área silvestre protegida. Si bien las instancias políticas podrían emitir pautas programáticas en torno a dicha materia, en definitiva, la aplicación concreta de la variable científica y técnica debe prevaler en la orientación funcional y las correspondientes decisiones.

El requerimiento antedicho ha quedado plasmado, verbigracia, en varios órganos colegiados con competencia en asuntos de relevancia ambiental, toda vez que su integración refleja esa procura por resolver asuntos concernientes al ambiente de una manera sustentada, esto es, con base en conocimientos científicos y técnicos, no según criterios de mera oportunidad política.

Verbigracia, el artículo 5 de la Ley del Servicio de Parques Nacionales prevé un consejo como organismo asesor del Poder Ejecutivo en lo relativo a la política de creación, desarrollo y conservación de parques nacionales. Tal órgano se encuentra integrado de esta forma:

“a) El Ministro de Ambiente y Energía, o su representante, quien lo presidirá.

• b)El Ministro de Cultura, Juventud y Deportes o su representante.
• c)Un representante del Ministerio de Educación Pública.

ch) Un representante del Instituto Costarricense de Turismo.

• d)El Director del Servicio de Parques Nacionales.
• e)Un representante del Colegio de Biólogos”.

Esto resulta de crucial importancia, por cuanto se requiere del dictamen afirmativo del Consejo para autorizar diversas actividades, como la pesca deportiva y artesanal en determinadas zonas de los parques nacionales.

Otro ejemplo se aprecia en el artículo 21 del Reglamento a la Ley de Conservación de Vida Silvestre. Este regula el Consejo Nacional de Vida Silvestre, cuyo objetivo es apoyar y asesorar técnicamente al MINAE y al SINAC en relación con la conservación y el uso sostenible de la vida silvestre, así como con la distribución justa y equitativa de los beneficios derivados. Tal comisión está conformada así:

“a. Del SINAC, el Coordinador de Vida Silvestre y su respectivo suplente.

b. Dos representantes titulares y dos suplentes designados por el CONARE.

c. Un representante titular y un suplente del Colegio de Biólogos de Costa Rica.

d. Un representante titular y un suplente del Colegio de Ingenieros Agrónomos.

e. Dos representantes titulares y dos suplentes de organizaciones no gubernamentales sin fines de lucro, con experiencia comprobada en conservación y uso sostenible de vida silvestre, las cuáles serán elegidas en un proceso participativo liderado por el MINAE SINAC”.

En consonancia con la ratio decidendi de la sentencia nro. 2022025307 ‑donde, al igual que en el sub examine, el principal bien constitucional cobijado es el ambiente, que tiene una vertiente natural y una urbana según lo explicado ut supra‑, en esta acción de inconstitucionalidad se observa que el resguardo al patrimonio cultural y a un ambiente sano y ecológicamente equilibrado requiere de funcionarios de nombramiento técnico y con competencia de orden científico en la conformación de la Junta Directiva del Parque Nacional Isla San Lucas.

En este sentido, la libre configuración del legislador en la creación y asignación de competencias administrativas, si bien resguardada constitucionalmente, no menos cierto es que se encuentra sujeta a una serie de limitaciones ‑verbigracia, cuando se trata de cuestiones atinentes a la protección al ambiente‑, puesto que, en tal caso, a partir de los principios de objetivación de la tutela ambiental, preventivo y precautorio, el principio lógico‑jurídico de no contradicción y de los derechos fundamentales a un ambiente sano y ecológicamente equilibrado y protección de las bellezas naturales (artículos 50 y 89 de la Constitución Política) resulta ineludible que el ente u órgano encargado de velar por el manejo y administración de un área silvestre protegida disponga a lo interno de su conformación del elemento científico, de modo tal que en la configuración sus decisiones participe tal factor que propicia la objetividad y el sustento técnico de las decisiones.

En el sub iudice, ello implica que la integración de la Junta Directiva del Parque Nacional Isla San Lucas debe estar conformada de manera tal que se fortalezca el carácter sustentado y técnico de sus decisiones, propósito que implica inexorablemente que sus miembros deban poseer suficientes conocimientos científicos en materia ambiental y de patrimonio cultural, merced a su experiencia en ese campo y por tratarse de una designación basada en el mérito profesional, mas no en la valoración puramente política.

Incluso, cabe recordar que en el ordinal 4 del decreto ejecutivo nro. 29277 ‘Declara Refugio Nacional de Vida Silvestre el área comprendida por la isla San Lucas y el área marino costero’ se dispuso:

“Artículo 4º—La Administración de las áreas protegidas aquí declaradas será competencia del Ministerio de Ambiente y Energía y de las instituciones establecidas por la normativa vigente. Las categorías de manejo establecidas en el presente decreto se regirán de acuerdo con las disposiciones establecidas al respecto por la legislación vigente en la materia. Las actividades de extracción de especies marinas se permitirán con base en las regulaciones que establezca el Instituto de Pesca y Acuacultura (INCOPESCA)”.

De este modo, desde su creación, la administración del Refugio Nacional de Vida Silvestre Isla San Lucas recayó en el MINAE y en las instituciones contempladas en la normativa vigente, como el SINAC, al tener dentro de sus atribuciones la administración de las áreas de conservación, así como el Consejo Nacional de Áreas de Conservación, cuyas funciones incluyen la definición de estrategias y políticas tendentes a la consolidación y desarrollo del SINAC, así como la supervisión y fiscalización de la correcta gestión técnica y administrativa de las áreas de conservación (véanse los numerales supracitados de la Ley de Biodiversidad).

Ahora bien, pese a que la administración del Refugio Nacional de Vida Silvestre Isla San Lucas, en atención al decreto ejecutivo nro. 29277, le fue asignada expresamente al MINAE y las instituciones establecidas en la normativa vigente, con la emisión de la ley nro. 9892 tal situación fue dejada de lado, por cuanto la superficie del refugio aludido, que pasó a conformar el Parque Nacional Isla San Lucas, quedó bajo la administración de la Junta Directiva prevista en el numeral 9 de tal normativa, cuya integración está compuesta por: “a) La ministra o el ministro de Ambiente y Energía, quien lo presidirá, pudiendo actuar como suplente un viceministro o viceministra de la cartera. b) La ministra o el ministro de Cultura, pudiendo actuar como suplente un viceministro o viceministra de la cartera. c) La Presidencia Ejecutiva del Instituto Costarricense de Turismo (ICT), pudiendo actuar como suplente la persona que ostenta la gerencia o un integrante de la Junta Directiva de dicho instituto. d) Una persona representante del Poder Ejecutivo designada por el Consejo de Gobierno, órgano que nombrará, además, a una persona suplente. e) La alcaldesa o el alcalde de la Municipalidad del cantón Central de Puntarenas, pudiendo actuar como suplente una vicealcaldía. f) La presidenta o el presidente de la Cámara de Turismo de Puntarenas, pudiendo actuar como suplente alguno de los integrantes de la Junta Directiva de dicha cámara”.

Semejante situación resulta lesiva a los principios de progresividad y de no regresión de la tutela ambiental, toda vez que la administración de la superficie en cuestión pasó de un órgano con conocimientos técnicos en materia ambiental a uno, en el que ni uno solo de sus integrantes es de designación técnica con base en su demostrado conocimiento científico.

De igual modo, los principios precautorio y de objetivación de la tutela ambiental se ven conculcados, por cuanto, en atención de las consideraciones expuestas ut supra, es indispensable que la Junta Directiva del Parque Nacional Isla San Lucas esté integrada por representantes de dependencias propiamente científicas y atinentes a la tutela ambiental y del patrimonio cultural, máxime que a ese órgano colegiado le corresponde adoptar una serie de decisiones de naturaleza técnico‑ambiental y de impacto en la preservación de los recursos naturales y culturales, la sostenibilidad y la biodiversidad, entre otros extremos de importancia para la protección a un ambiente sano y ecológicamente sostenido en esa área silvestre protegida y del referido patrimonio cultural.

Precisamente, a dicho órgano colegiado compete, entre otras cosas, “a) Definir las estrategias y políticas tendientes a la consolidación y el desarrollo del parque. b) Contribuir con la protección y conservación ambiental del parque nacional. c) Establecer los lineamientos de protección, restauración y administración de las edificaciones históricas, desarrollando instalaciones y servicios destinados al descanso y el esparcimiento de los visitantes, la habilitación y accesibilidad de las vías terrestres y marítimas, las construcciones portuarias y, en general, la dotación de todos los servicios básicos. d) Definir las actividades turísticas sostenibles ambientalmente, sean comerciales, de transporte, deportivas, artísticas o culturales, que incentiven la atracción turística y la visitación a la isla (…) f) Otorgar la aprobación de las autorizaciones, los permisos de uso y las concesiones para llevar a cabo obras y servicios que se presten en la Zona turística.

En el caso de las obras relacionadas con las áreas declaradas patrimonio, se deberá coordinar con el Ministerio de Cultura. g) Aprobar el plan maestro del Parque Nacional, así como los programas, planes y presupuestos correspondientes. h) Aprobar la estructura administrativa que se requiera para la gestión institucional del parque”. Incluso, otras tareas que no son específicamente ambientales, como el mercadeo y la promoción del parque, siempre deben considerar la variable del resguardo a la naturaleza y del patrimonio cultural, justamente, por tratarse de un área silvestre protegida de interés histórico arquitectónico.

Cabe resaltar que, previamente, en el ordenamiento jurídico algunas de esas funciones ahora conferidas a la Junta Directiva del Parque Nacional Isla San Lucas le fueron otorgadas al Consejo Nacional de Áreas de Conservación y al SINAC. Verbigracia, el ordinal 25 de la Ley de Biodiversidad contempla como parte de las funciones del consejo aludido: “1.- Definir la ejecución de las estrategias y políticas tendientes a la consolidación y desarrollo del Sistema Nacional de Áreas de Conservación, y vigilar que se ejecuten. 2.- Supervisar y fiscalizar la correcta gestión técnica y administrativa de las Áreas de Conservación (…) 4.- Definir estrategias y políticas relacionadas con la consolidación y el desarrollo de las áreas protegidas estatales, así como supervisar su manejo. 5.- Aprobar las estrategias, la estructura de los órganos administrativos de las áreas protegidas y los planes y presupuestos anuales de las Áreas de Conservación (…) 8.- Establecer los lineamientos y directrices para hacer coherentes las estructuras, mecanismos administrativos y reglamentos de las Áreas de Conservación (…) 10.- Aprobar las solicitudes de concesión indicadas en el artículo 39 de esta ley”.

Además, en el artículo 9 del Reglamento a la Ley de Conservación de la Vida Silvestre se estableció que al SINAC le corresponde “Otorgar las licencias, permisos u autorizaciones que señalan la LCVS y este reglamento”. Ergo, las funciones otorgadas a la Junta Directiva del Parque Nacional Isla San Lucas en los incisos a), b), f) y h) del artículo 9, por mencionar algunos ejemplos, ya habían sido conferidas previamente al SINAC y al Consejo Nacional de Áreas de Conservación, a saber, actores de carácter técnico.

Sobre este tema, en el supracitado oficio nro. DM-1216-2019 suscrito por el MINAE el 27 de noviembre de 2019 respecto al proyecto de ley nro. 21287 que se convirtió en la ley nro. 9892, se consignó: “En el artículo 7 sobre la creación de la Junta Directiva del Parque Nacional Isla San Lucas, se recomienda que sea un órgano de desconcentración máxima adscrito al Ministerio de Ambiente y Energía, y con personalidad jurídica instrumental para el ejercicio de sus competencias. Así como que los puestos sean en propiedad y que sea presidido por el MINAE. Recomendamos además que sean personas con perfil idóneo técnico y especializado, acompañados por una persona como Gerente Ejecutiva de la Junta, que apoye a la gestión de la administración en labores especializadas como la conservación y restauración del patrimonio cultural de la isla. Además debe acompañarse de personal administrativo para cumplir con todas las obligaciones que les impone la ley. Los integrantes de la Junta no deben devengar ninguna dieta y sugerimos que su nombramiento sea por periodos de dos años” (el énfasis fue incorporado).

En igual sentido, en el memorial nro. CICPC-CNP-023-2019 suscrito el 1° de julio de 2019 por la Comisión Nacional de Patrimonio Histórico Arquitectónico en relación con el proyecto de ley nro. 21287 supramencionado se indicó:

“ARTÍCULO 9- Integración La Comisión Nacional de Patrimonio Histórico Arquitectónico considera que no es necesario establecer una Junta Directiva que viene a sustituir o suplantar funciones que le fueron conferidas por Ley al Centro de Patrimonio Cultural.

ARTÍCULO 12 – Desarrollo e Infraestructura En relación con el Artículo 09 y 12, esta Comisión considera que es muy preocupante que se le dé a una Comisión que no es técnica ni de especialistas, funciones por encima de las mismas responsabilidades ministeriales de protección del patrimonio y del ambiente, en función del turismo.

El disfrute y apreciación histórica puede ser entendido de muy diversas formas por una Comisión que tomaría decisiones por votación donde no dominaría el criterio especializado (…)” (el énfasis fue agregado).

Asimismo, en el informe nro. AL-DEST-IJU-006-2020 emitido por el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa concerniente al proyecto de ley que se convirtió en la ley nro. 9892, se señaló:

“Artículo 9.- Integración Establece como (sic) estará constituida la Junta Directiva del Parque Nacional Isla San Lucas.

Respecto a los representantes destacados en la Junta Directiva, es imprescindible establecer en el artículo quien (sic) los designará, rango y conocimientos técnicos que debe poseer cada representante, amén del poder de decisión para determinar los acuerdos.

Tratándose de una junta directiva encargada de la gestión del accionar de un área silvestre protegida y un área periférica turística sostenible, en cuyo manejo confluyen principios ecosistémicos, ecológicos, sociales, económicos, culturales, turísticos y ambientales, los sujetos representantes deben poseer pericia que permita tomar decisiones afines a esos intereses.

Sobre el funcionamiento y organización del órgano aquí constituido, si bien el artículo diez remite a la Ley General de la Administración Pública, debe indicarse específicamente en lo “referente y correspondiente a los órganos colegiados”, para mayor claridad. Sin embargo, sería importante a lo sumo se señalen aspectos básicos como el quórum para constituir el órgano y el número mínimo de sesiones por mes” (el resaltado fue añadido).

Con base en lo expuesto, resulta contrario a los principios de progresividad y de no regresión en materia ambiental, a los principios precautorio y de objetivación de la tutela ambiental, al principio preventivo en materia de patrimonio cultural y, por derivación, a los artículos 50 y 89 de la Carta Magna, el hecho de que la Junta Directiva del Parque Nacional Isla San Lucas, según el numeral 9 de la ley nro. 9892, no esté conformada por órganos técnicos de protección al ambiente y del patrimonio cultural que coadyuven propiamente en el diseño de políticas, pautas orientativas y otros facetas de relevancia ambiental y cultural dentro del proceso de toma de decisiones al interno de ese órgano colegiado. Además, si bien en el ordinal 9 de la ley nro. 9892 se indicó que: “En materia de conservación y preservación del patrimonio histórico-arquitectónico prevalecerá el criterio del Centro de Investigación y Conservación del Patrimonio Cultural del Ministerio de Cultura y para la protección de la vida silvestre y conservación de la biodiversidad de la isla prevalecerá el criterio técnico del Sistema Nacional de Áreas de Conservación”, no menos cierto es que no se aprecia que exista obligatoriedad en requerir tales criterios técnicos.

Asimismo, obsérvese que la conservación y preservación del patrimonio histórico arquitectónico y el resguardo a la vida silvestre y biodiversidad en la isla, son solo unos de los aspectos de relevancia cultural y ambiental en los que debe prevalecer el criterio del Centro de Investigación y Conservación del Patrimonio Cultural y del SINAC, respectivamente, según regula de manera expresa la norma, toda vez que la salvaguarda de tales bienes constitucionales naturalmente se extiende a otros ámbitos de protección atinentes al parque en tanto área silvestre protegida y sitio de interés cultural, como la dignidad en relación con la naturaleza, el paisajismo, la educación en esta materia, entre otros.

Finalmente, aun cuando en los autos consta prueba de que representantes del SINAC tuvieron participación en las sesiones ordinarias de la Junta Directiva del Parque Nacional Isla San Lucas nros. 01-20, 02-20, 01-21, 03-21, 05-21, 06-21, 07-21, 01-22, 02-22, 02-22, 05-22, 07-22, 09-22, 10-22, 01-23 y 02-23, no se comprueba que hayan asistido a la totalidad de las referidas sesiones; ejemplo de ello es que de las 14 sesiones ordinarias que se efectuaron en el año 2021, la Junta Directiva aludida solo contó con la participación de una persona representante del Sistema Nacional de Áreas de Conservación en cinco de ellas.

Por ende, se verifica la inconstitucionalidad del numeral 10 de la ley nro. 9892.

VII. Sobre la alegada inconstitucionalidad de la ley nro. 9892, en cuanto al otorgamiento de concesiones

Los suscritos magistrados también sostenemos que, previo al otorgamiento de algún tipo de concesión, autorización o permiso de uso en un parque nacional, es necesario contar con estudios suficientes e individualizados que, en atención al principio de objetivación de la tutela ambiental, permitan acreditar técnica y científicamente que no se va a perjudicar al ambiente y, en el caso especial de la isla San Lucas, tampoco al patrimonio cultural.

Pese a lo anterior, la ley nro. 9892 autoriza el otorgamiento de concesiones y permisos para actividades e instalaciones distintas a las del servicio de parques i) sin que previamente se haya efectuado un estudio científico que estableciera las pautas respecto de cuáles actividades se pueden o no concesionar en el Parque Nacional Isla San Lucas, de acuerdo con sus especificidades ambientales y culturales, y en atención de sus objetivos y fines de conservación; y ii) sin exigir expresamente la realización de estudios de impacto ambiental antes del otorgamiento de las referidas concesiones a los efectos de determinar, por medio de criterios técnicos y científicos, que no se vaya a causar un deterioro al ambiente. Tampoco se verifica el respeto al principio precautorio, pese al riesgo que genera el otorgamiento de concesiones en un parque nacional que además posee patrimonio cultural. Por ende, al constatarse la lesión a los principios precautorio, preventivo y de objetivación de la tutela ambiental, y los derechos fundamentales contemplados en los ordinales 50 y 89 de la Constitución Política, se evidencia la inconstitucionalidad de los párrafos segundo y tercero del artículo 7, los incisos f) y j del numeral 9, así como de la frase “los cánones por concesiones y permisos” del ordinal 17 de la ley nro. 9892.

VIII.En cuanto al resto de agravios planteados en el sub lite. Finalmente, no omitimos señalar que coincidimos con la mayoría en cuanto a lo establecido en los considerandos XII y XIII de este pronunciamiento.

IX.Corolario. En suma, los suscritos magistrados salvamos el voto, declaramos con lugar la acción y anulamos la ley nro. 9892 del 24 de agosto de 2020, denominada ‘Ley de Creación del Parque Nacional Isla San Lucas’, por violación a los principios de progresividad y de no regresión en materia ambiental, los principios precautorio y preventivo -en materia ambiental y de patrimonio cultural-, el principio de objetivación de la tutela ambiental y los derechos fundamentales cobijados en los artículos 50 y 89 de la Constitución Política.

Fernando Cruz C.

Paul Rueda L. Roberto Garita N.

Res. nro. 2023-012817 RAZONES ADICIONES DEL MAGISTRADO CRUZ CASTRO.- El irrespeto del principio constitucional de razonabilidad técnica, en materia ambiental, es además un vicio de procedimiento legislativo.

He concurrido con el voto salvado de esta acción, donde por las amplias razones que allí se expresan, he considerado que la ley nro. 9892 del 24 de agosto de 2020, denominada "Ley de Creación del Parque Nacional Isla San Lucas", resulta inconstitucional. Básicamente en dicho voto se sustentan consideraciones de esa inconstitucionalidad, por violación a los principios de progresividad y de no regresión en materia ambiental, los principios precautorio y preventivo -en materia ambiental y de patrimonio cultural-, el principio de objetivación de la tutela ambiental y los artículos 50 y 89 de la Constitución Política.

Ahora bien, además de lo allí indicado, he considerado agregar estas razones adicionales para dejar consignado lo siguiente:

El principio de razonabilidad técnica, como principio constitucional, le impone al legislador contar con un estudio técnico, de previo a la aprobación de una ley, a efectos de probar la proporcionalidad entre los medios elegidos y los fines propuestos, y con ello evitar que la ley sea irracional, arbitraria o caprichosa, pero además, que los medios seleccionados tengan una relación real y sustancial con su objeto (ver resolución n°1992-1739, n°2018-15966, n°2021-11957, entre otras). Dicho principio se constituye así en un parámetro constitucional (ver resolución n°2001-732). Parámetro que conlleva a considerar un vicio esencial de procedimiento legislativo la ausencia de criterio técnico (véase la resolución n°2012-13367 y n°2017-11714, ésta última cuando indica: “este Tribunal ha exigido en materia ambiental la necesidad de que haya estudios técnicos para reducir áreas protegidas, y ha concluido que esta omisión constituye un vicio de carácter esencial en el procedimiento legislativo.”).

Así, esta Sala ha precisado que en ciertas materias ese estudio técnico o científico es necesario y por tanto ha entendido que contar con dicho sustento técnico es parte del principio constitucional de razonabilidad técnica. Así ha dicho esta Sala que “Los estudios técnicos son necesarios, cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad.” (ver resolución n°2018-00230 de las 10:40 horas del 19 de enero del 2018). Sobre ver sobre el principio constitucional de objetivación de la tutela ambiental o principio de vinculación a la ciencia y la técnica ver las resoluciones n°2022-23307 de las 13:40 horas del 25 de octubre del 2022, n° 2010-000075 de las 15:01 horas del 6 de enero de 2010, n°2012-013367 de las 11:33 horas del 21 de setiembre de 2012, n°2013-005964 de las 15:05 horas del 30 de abril de 2013 y n°2018-007978 de las 12:45 horas del 18 de mayo de 2018.

En este asunto, la ley nro. 9892 del 24 de agosto de 2020 procedió a cambiar la categoría de manejo a una superficie territorial del área silvestre protegida “Isla San Lucas” y a reducir su superficie. Todo ello, sin contar con estudios científicos que garantizaran que dicho cambio no tendría un impacto desprotector del patrimonio natural (por ser un área silvestre protegida) y cultural (por ser declarada patrimonio cultural) de Isla San Lucas. Esta exigencia le impone una clara restricción al ejercicio del poder político, en este caso, el del parlamento. No puede adoptar la decisión en materia tan sensible, como el ambiente, sin contar con un estudio técnico previo. En este caso, el poder político se somete, por intereses superiores, al criterio científico. Esta restricción se ha irrespetado en este caso, como en otros en los que esta Sala ha dilucidado temas de ambiente. La decisión política, tan importante, tiene que someterse al criterio científico, en función de la defensa de intereses superiores.

Además, se pone de manifiesto la violación a los principios ambientales de: principio preventivo (cuando haya certeza de posibles daños al ambiente, la actividad afectante deba ser prohibida, limitada, o condicionada al cumplimiento de ciertos requerimientos). En general, este principio aplica cuando existen riesgos claramente definidos e identificados al menos como probables; asimismo, tal principio resulta útil cuando no existen informes técnicos o permisos administrativos que garanticen la sostenibilidad de una actividad, pero hay elementos suficientes para prever eventuales impactos negativos), principio precautorio (cuando haya peligro de daño grave e irreversible, la falta de certeza científica absoluta no deberá utilizarse como razón para postergar la adopción de medidas eficaces en función de los costos para impedir la degradación del medio ambiente. El principio parte de una incertidumbre científica razonable en conjunto con la amenaza de un daño ambiental grave e irreversible), principio pro natura (en caso de duda o incerteza las controversias deben resolverse y las normas deben interpretarse a favor de la protección y conservación del ambiente) y el principio de objetivación de la tutela ambiental (o principio de la vinculación a la ciencia y a la técnica, según el cual se impone acreditar con estudios técnicos la toma de decisiones en esta materia, tanto en relación con actos como de las disposiciones de carácter general -tanto legales como reglamentarias-, de donde se deriva la exigencia de la "vinculación a la ciencia y a la técnica", con lo cual, se condiciona la discrecionalidad de la Administración en esta materia. Ha sido definido como principio número 17 de la Declaración de Río sobre el Medio Ambiente).

Cuando se está ante una situación que exige la aplicación del principio precautorio, el legislador debe abstenerse de legislar en perjuicio o mediante normas que supongan una regresión de la tutela ambiental. Por ende, la aplicación del principio precautorio implica que cuando existan indicadores de que cierta actividad plausiblemente podría ocasionar daños graves e irreversibles al ambiente, la falta de certeza o evidencia científica absoluta al respecto, no exime de la obligación de impedir una vulneración al ambiente. Además, en atención a la teoría de la Drittwirkung der Grundrechte, tal principio extiende su función orientadora a las conductas de sujetos de derecho tanto público como privado.

Lo anterior conlleva entonces, una violación al principio constitucional de razonabilidad técnica, y con ello, el legislador incurrió en un vicio sustancial del procedimiento que torna la ley, inconstitucional, no sólo por razones de fondo como se dice en el voto salvado, sino también de forma, como lo consigno en estas razones adicionales.

La tensión entre las razones científicas y los intereses políticos coyunturales, se aprecia muy claramente en temas de ambiente, porque se pretende que prevalezcan los intereses ajenos a la tutela de la Tierra, a pesar de los criterios científicos que contradicen tal pretensión. Los delicados equilibrios que sostienen el ambiente y la salud de la madre Tierra, requieren la sabiduría de la ciencia, absteniéndose incluso ante la duda de perjuicio ambiental. Esta sabia regla, se estruja o se posterga cuando las urgencias políticas lo requieren. Es una historia común en materia de tutela de nuestra casa común.

Fernando Cruz Castro 1 [1] Véase al respecto: PNUD y otros. El ABC de los servicios y actividades no esenciales en las áreas silvestres protegidas del Sistema Nacional de Áreas de Conservación. Costa Rica, febrero 2021. página 39. Disponible en: https://www.undp.org/es/costa-rica/publicaciones/documento-de-trabajo-abc-deservicios-y-actividades-no-esenciales-en-las-areas-silvestres-protegidas